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

Torts Gold Fall 2015

I. Central Ideas of Torts

Fundamental issue of torts = when should losses be shifted from injured to injurer or other source of compensation

negligence – determines whose fault it is – conduct below standard of behavior of prudent person to avoid reasonable harm – failure to use ordinary or reasonable care

4 elements of negligence:

– duty

– breach

– causation

– damages

standards of liability – negligence or strict liability

strict liability – total legal responsibility for injury or damages even if person was not at fault or negligent

Hammontree v. Jenner

Holding: strict liability does not apply to epileptic driver (d); negligence could have been

Liability can occur when foreseeable

vicarious liability – defendants can be held vicariously liable for the torts of another person (i.e. corporations, businesses)

Christensen v. Swenson

Holding: an employer is vicariously liable for torts committed by employee with the scope of their employment – (d) could have been in scope

respondeat superior – in many cases, an employer is liable for the actions of employees performed within the scope (or course) of their employment

Birkner test (for scope)

a. employee conduct kind hired to perform

b. conduct within hours and boundaries of job

c. conduct spurred by serving employee

Roessler v. Novak

Holding: A principal (d. – hospital) may be held vicariously liable for the acts of physicians even if they are independent contractors (apparent agents), if these physicians act with the apparent authority of the hospital

apparent agency exists if all 3 conditions:

a. representation by the purported (rumored) principal

b. reliance on that representation by a third party

c. change in position by the third party in reliance on the representation

II. The Negligence Principle and the Nature of Fault: Issues of Law, Fact, and Proof

History: pre-industrial era was mostly strict liability – shift to negligence after vicarious liability emerges

A. The Importance of Fault

Kendall v. Brown

Holding: if an accidental casualty arises from a lawful act, no action can be supported for plaintiff unless lack of ordinary care can be proved by plaintiff (new trial for d.)

plaintiff has the burden of proof that defendant did not show ordinary care

ordinary care (definition): the kind and degree of care which prudent and cautious men would, such as is required by the exigency of the case, and such as is necessary to guard against probable danger

Fault Principle – (established by Kendall v. Brown)

If plaintiff and defendant are both using ordinary care, or

defendant using ordinary care and plaintiff was not, or

if both plaintiff and defendant not using ordinary care = PLAINTIFF CANNOT RECOVER

B. The Meaning of Negligence

Adams v. Bullock

Standard of Care – ordinary and reasonable

Holding: If there is only a remote, unusual possibility of an accident, and therefore not foreseeable, the party (d.) was not negligent (reasonable care)

U.S. v. Carroll Towing Company

Holding: B

B (attendant aboard barge) < P (probability barge would break free if unattended) x L(injury of runaway barge)

“Learned Hand rule” = calculus of negligence bal

compared to Pokora

Holmes in Goodman – what matters in uniformity

Cardozo in Pokora – what matters in case-by-case

Supreme Court overruled itself!

General rule –

If (d.) negligent and (p.) negligent – (d.) wins lawsuit

If (d.) negligent and (p.) not negligent – (p.) wins lawsuit

Andrews v. United Airlines

Issue: baggage safety nets, airline posts warnings

Court: after (d.) United Airlines wins on summary judgment, then reversed and remanded

Common carriers owe a duty of utmost care towards passengers, but although responsible for slightest negligence, not insurers of passengers’ safety

Therefore, if there is room for reasonable people about what is reasonable care, let the jury decide (objective standard)

Trimarco v. Klein

Custom role – what is normally done in an industry

Must be proven to exist

Judgment reversed in favor of (d.), then court found for (p.) on appeal

– Proof of custom and usage along with evidence showing adherence could establish one has acted with due care

– Proof of custom and usage along with evidence showing failure to adhere could establish liability

BUT: while custom and usage is good evidence of what ought to be done, it must still be reconciled with the reasonable person standard – not conclusive evidence of negligence – jury should decide