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Rutgers University, Newark School of Law
Perry, Twila L.

Torts Outline

Perry, Fall 2016

Intro to Tort Liability

When Should Unintended Injury Result in Tort Liability?

failure to use due care

Strict Liability: liable if accident happened

Hammontree v. Jenner pg. 3: (D during epileptic seizure unconsciously drove car into bike owner’s shop) Court held that driver was not liable b/c jury instruction on strict liability does not entail driver’s who suddenly are stricken by illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge. *Doctors and DMV had cleared him to drive
Refused to equate strict product liability w/ automobile accidents
is most important, negligence requires it
Could have been avoided if foreseen, chose to act but choice was not in relation to accident

The Parties & Vicarious Liability

Vicarious Liability: employers are liable for employee’s actions if they are “acting w/in the scope of their employment.” (Respondeat Superior)

Employee vs. Independent Contractors

a. hired to produce a certain result but is not subject to control of the one who hired him

vicarious liability DOES apply
a. one who workssubject to the controlof the person who hired him

Birkner Test:

1. Employee’s conduct must be of general kind the employee is hired to perform

2. Conduct must occur substantially w/in the hours and ordinary spatial boundaries of the employment
3. Conduct must be motivated by the purpose of serving the employer’s interest

Christenson v. Swenson pg. 20: (Employee took lunch break from post and caused accident near place of employment) Court held that SJ was inappropriate b/c reasonable minds could differ as to whether she was acting w/in the scope of her employment.

Apparent Authority:

1. Representation by the purported principal

2. Reliance on that representation
3. A change in position by the third party in reliance on the representation

implied/apparent authority: “authority which a principal knowingly tolerates or permits, or which the principal by its actions or words hold the agent out as possessing”
(1) only where the principal created the appearance of an agency relationship

Non-delegable duty: harm so potentially high that employer is responsible no matter what (city keeping up streets, railroad crossings) Patients have no choice, get what you get, probably should be non-delegable duty.

Roessler v. Novak pg. 27: (Dr. misread scan and plaintiff suffered complications as a result, Dr. was Independent Contractor of hospital) Court held that there was a question concerning Apparent Authority (when principal creates appearance of agency relationship), thus SJ improper. Office was not outside hospital, nothing indicated that he was not employed by hospital, but other possible facts could develop negating theory

1. Duty
2. Breach
3. Causation
4. Injury
Need all 4 elements to be liable for negligence

General “Prima Facie”: You must show that there was a duty to the P, a breach of that duty, and that the breach was the actual and proximate cause of the injury. Negligence may occur by a volitional act or by a willful and affirmative omission to act

a legal duty requiring D to conduct himself according to a certain standard so as to avoid unreasonable risks to others

failure by D to conform his conduct to this standard

Showing that D’s conduct was cause of P’s


Reasonable Person: Is an objective standard of how an ordinary common citizen would act in a given situation

Categories of the Reasonable Prudent Person:
Children standard (blended)
1. Subjective inquity then an objective one of a child of like capacity. A reasonable child of a similar age, experience, education, and intelligence
a. Children below a certain age are not capable of mental capacity to be negligent (age 7)
b. EXCEPTION – Sometimes held to adult standard of care when engaged in activities that are inherently dangerous or can cause fatalities i.e. operating a motor vehicle

Physical Issues
A blind person is held to a standard of a reasonable blind person or other applied disability

Person who has professional or has special skills, is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities

Bethel pg. 53: Wheelchair seat collapsed, found that it had been repaired 11 days ago. Proper inspection would have revealed problem.
Common carrier rule applied to railroads and held that these people should have a higher standard of care due to the mass transit of people. This rule was done away with. –
Regular care of reasonable person should now apply to common carriers as well.