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Rutgers University, Newark School of Law
Gold, Steve C.

Torts Rules Outline – Fall 2015
Professor Gold
For purposes of this outline:
Tests or lists of factors are highlighted in yellow.
Cross-referenced case names are highlighted in gray.
Heading titles are taken straight from the syllabus – outline follows that format.
Central Themes of Tort Law
Three main theories of tort liability (for our class).
Ø  Negligence – fault based liability
Ø  Strict liability – liability without fault
Ø  Product liability
Four elements in a negligence claim (must be proven by P by a preponderance of the evidence (more likely than not, >50%)).
Ø  Duty – legal duty to someone else
o   Question of law for the court to decide.
Ø  Breach – must breach the duty for negligence
o   Question for the jury.  Was there a breach?
Ø  Causation – causal relationship b/t act and injury
o   Were P’s injuries caused by D’s actions?
Ø  Damages – P hurt in some way.
See Hammontree v. Jenner.

Vicarious Liability
Vicarious Liability – D is liable for the tortious actions of another person.
Ø  Most commonly found in employer/employee relationships when the employer is strictly liable for torts committed by their employee “within the scope of their employment.”
“Scope of employment” is subject to the BIRKNER TEST. If answers to 3 factors are “yes”, then it is within the scope of employment.
Ø  Conduct is of the general kind the employee was hired to perform;
Ø  Conduct occurs within the hours and spatial boundaries of the employment;
Ø  Conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.
Ø  See Christensen v. Swenson.
Agency relationships can make a D liable for the actions of independent contractors who are not directly employees.
Ø  Direct Agency – employer/employee relationship or contractor/contractee.  Usually easy to identify.
Ø  Apparent Agency – when a principal allows the agent to have authority on their behalf.  Two tests for apparent agency.
o   Restatement of Agency Test
§  Representation by the principal of agent’s authority (must be by the principal);
§  Reliance on the representation made by a 3rd party; and
§  Change of position by 3rd party in reliance on the representation.
o   Restatement of Torts Test
§  If the 3rd party accepts services from an agent in reasonable belief that services are being provided by the principal, then the principal will be liable under apparent agency.
o   See Roessler v. Novak.

Unit II – Negligence and Fault
Importance of Fault
GENERAL RULE – Negligence is based on duty of “ordinary” or “reasonable” care, not “extraordinary” care.
Ø  Were D’s actions lawful?  If yes, then only liable if not using ordinary care.
Ø  REASONABLE CARE UNDER THE CIRCUMSTANCES becomes the general standard of care.
Ø  Fault chart (adjusted with comparative negligence)

Defendant at fault
Defendant no fault
Plaintiff at fault
Defendant wins
Defendant wins
Plaintiff no fault
Plaintiff wins
Defendant wins
Ø  See Brown v. Kendall.

Meaning of Negligence
Whether a risk of harm taken is reasonable or unreasonable depends on a number of factors.
Ø  Was the act a lawful act?
Ø  Were reasonable precautions taken to minimize the risk of harm to others?
Ø  Could ordinary (reasonable) care have prevented the injury?
Ø  Was the harm foreseeable?
Ø  See Adams v. Bullock.
It is a balancing b/t reasonable care and foreseeability of harm.
Ø  Can’t take precautions against a harm you cannot foresee.
“Some accidents are not worth preventing because burden to prevent them is greater than the injuries that would result” – Judge Hand.  Comes up with famous B
When the burden of precaution is less than the harm caused times the probability of an accident, then there is negligence.
o   B= burden of adequate precaution (how much it costs to prevent the accident)
o   P= probability of the harm occurring
o   L= predicted magnitude of the loss (severity of the harm)
o   If B is less than PL, then there is negligence.
o   Determination of breach, not determining if there is a duty or not.
o   See US v. Carroll Towing.

Defining the Standard of Care
Common Carriers/Innkeepers
Traditionally, common carriers and innkeepers were held to the “utmost standard of care.”  They were required to take extraordinary precautions against harm to their passengers or guests.
Today, common carriers and innkeepers are held to the “reasonable person standard.”  This is an objective standard that considers:
Ø  Reasonably foreseeable risks to others;
Ø  Potential severity of harm to others;
Ø  Any special relationship b/t victim and the actor.
Ø  See Bethel v. NYC Transit Authority.
The jury decides what constitutes adequate reasonable care.
Ø  See B’more & Ohio RR v. Goodman;  Pokora v. Wabash RR.
Additionally, the jury decides if a warning constitutes “utmost care” for those states that still use that standard of care for common carriers.
Ø  See Andrews v. United Airlines.

Custom (Industry practices)
GENERAL RULE – Evidence of a custom used within a certain industry can support the proper stand

sufficient length of time prior to accident for D to remedy it.
o   If P proves that D had constructive notice, a prima facie case of negligence is established and burden of proof shifts to D to prove that they took reasonable precautions.
Ø  Business Practice Rule – if a business practice creates a continuous and foreseeable risk to customers, then P does not need to establish actual or constructive notice.
Ø  See Negri v. Stop & Shop;  Gordon v. American Museum of Nat. History.

Res Ipsa Loquitur
Res ipsa loquitur is when the trier of fact infers the existence of negligence by the defendant in absence of direct evidence of negligence.  3 requirements to a res ipsa loquitur claim.
Ø  The accident was of a kind that ordinarily does not occur without negligence;
Ø  It was caused by an agent or object within the exclusive control of the defendant;
Ø  It was not due to any fault of the plaintiff (no contributory negligence).
o   In comparative negligence systems, this last requirement doesn’t completely bar the claim, but might affect P’s ability to recover.
These elements, once proven, establish a prima facie case of negligence (successful claim unless proof to the contrary).  Rebuttable presumption of negligence.
Ø  Burden of proof shifts back to D to show that they were NOT negligent.
3 ways to instruct the jury on res ipsa loquitur.
Ø  Inference – jury MAY infer D’s negligence based on the facts (but does not HAVE to).
Ø  Prima Facie evidence (rebuttable presumption) – jury must PRESUME D was negligent if prima facie case is established.  D can provide evidence to overcome that presumption.
o   Since P still has the burden of proof, if D presents evidence that creates doubt or “evens the scales,” jury must decide for D.
Ø  Burden Shifting – jury MUST find D negligent unless he PROVES he wasn’t.  Shifts the burden of proof to the Defendant.
o   Since D has the burden of proof here, if D presents evidence that “evens the scales,” jury must decide for P.
See Byrne v. Boadle;  McDougald v. Perry;  Ybarra v. Spangard.