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Rutgers University, Newark School of Law
Gonzales, Carlos

Torts Gonzales Fall 2016

Tort Definition: Tort law is a residual area of civil causes of action that do not fit into the traditional areas of contract and property law, or under more modern areas of statutorily created causes of action.

Some definitions have been over inclusive (including even non-tort wrongs) and some under inclusive (not including contracts/injunctive relief claims)

Basic Tort Claim Framework

1. Duty: Did the defendant (“D”) owe the plaintiff (“P”) a legal duty of care?

2. Breach: Did D’s actions or inactions fall below the applicable legal standard of care? 3. Causation: Did D’s breach (actions or inactions) actually and proximately cause P’s harm?

4. Harm: Did P suffer a legally cognizable harm (a harm for which courts will provide redress)?

And then affirmative defenses… (defendant may still survive all 4 elements being met if can bring up an affirmative defense)

Introduction to Tort Liability

Hammontree v. Jenner, CA 71’:

no strict/absolute liability rule applies when defendant experienced a sudden and unanticipated physical illness

Facts: case where defendant crashed through the shop due to becoming unconscious because of due a sudden epileptic seizure, he remembered a few events leading up to the accident, extensive medical history, takes medicine, dmv reporting every year.

Holding: court held no strict/absolute liability (imposes liability regardless of fault) rule applies when defendant experienced a sudden and unanticipated physical illness. Likewise, Jenner was not negligent either due to this sudden episode.

Plaintiff dropped the negligence claim and stayed with absolute one. Strict liability is usually brought on product liability cases since manufacturers are distributing public goods and can handle through cost spreading mechanisms. Public policy: a hard task to introduce strict liability in users of the street , can create uncertainty on how rule should operate, also this liability does not make an exception for cases that defendant was not aware of his condition in which to anticipate any incident)

DMV was not a party because of the defense of sovereign immunity : gov’t cannot be liable unless they failed to perform a duty and were negligent

Strict Liability rationale as per professor: defendants with a known conditions are the only ones that know about it and can incentivize them to control it.

Universal insurance will slow down social progress by deterring people due to the potential for liability.

Strict v. Negligence Liability

The only difference in the main 4 elements of negligence and strict liability is that strict liability does not require a showing of breach of duty. Even if the defendant used reasonable care they will still be liable under strict liability unlike under negligence.

Bashi v. Wodarz CA 96’

a sudden onset of mental illness does not preclude liability

Facts:Two separate Rear-end collisions, “wigged out” case, claimed did not recollect anything and that family has a history of mental issues.

Holding : a sudden onset of mental illness does not preclude liability

Civil code that was revised but kept “unsound minds” as still being civilly liable for their wrong. Policy reasoning for imposing liability of mentally infirm: difficult drawing distinctions between mental deficiency and variations of temperament. Unsatisfactory character of evidence to proof mental deficiency exists, its degree and effect, the ease in which it could be simulated, imposing liability will incentivize the ones that look after them to keep them in order and prevent that they do harm.

Vaughan v. Menlove case, piling hay caused a fire and defendant’s defense what he should not be responsible for the misfortune of not processing the highest order of intelligence. Holding: court rejected this argument, it would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various.

Hammontree only applies to physical illness and could not be applied in this mental illness case.

Kollerbohm v County of Los Angeles 07’

Cannot claim a defense of sudden unanticipated physical illness on evidence that does not support that it was more likely than not the incident was unanticipated. One cannot infer what happened from what could have happened. Dependant has burden of production to claim a defense

Facts: deputy sheriff fell asleep at wheel during work time. Did not remember anything prior to ten miles. Later diagnosed with sleep apnea after accident. Holding: held liable due to not enough evidenciary support. Medical expert testimony contradictory : it could have been sudden or it could have felt drowsy and been able to shake it off. Did not meet burden of production. Difference from Hammontree: Kollerbohm did not remember nothing prior to ten miles questioning the suddenness of the incident where as Jenner in only remember a few events prior to the incident.

Wigmore Diagram

Plaintiff has burden of proof to show all 4 elements of negligence and move further to the middle court where reasonable minds can disagree and jury can reach a finding. Defendant has burden of production for affirmative defenses. If any move to the center of the diagram, judge cannot issue a judgment as a matter of law.

Christensen V. Swenson Utah 94’

An employer may be held vicariously liable for an employee’s actions that occur within the scope of employment. Respondeat superior

Facts: employee guarding plant went to get lunch during 15 minute unscheduled break allowed by employer. Collided with plaintiff. Holding: Reasonable minds could differ a to whether defendant was acting within the scope of employment, remanded for jury to decide. Summary judgment not appropriate if issue of material fact.

Respondeat superior is a form of vicarious liability and it is a strict liability. Courts used the Birkner Test, three criteria must be established to determine it:

1. First, the employee’s conduct must be of the general kind the employee is hired to perform, that is, ‘‘the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.’’

2. “Second, the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.”

3. “Finally, ‘‘t

of Care

Brown v Kendall Supreme Court MA 1850:

If one exercises ordinary care one cannot be held liable for accident that may arise in the committing of a lawful act.

A person will be liable for injuries caused by a trespass only if his intent is unlawful, or he is at fault.

Facts: 2 dogs belong to parties fighting and defendant took a stick to discipline and hit plaintiff while raising his stick backwards as he retreated and plaintiff getting closer him.

Holding: Plaintiff fails to sustain the burden of proof that defendant failed to establish ordinary care or that he intentionally caused the harm and thus not entitled to recover if defendant was doing a lawful act and exercising ordinary care (not at fault). Trial ordered to establish that. If injury was unavoidable and conduct free from blame no liability. Trial court erred in not allowing defendant instructions stating that either 1. both parties used ordinary care or 2. defendant was using ordinary care and plaintiff was not or 3. both were not using ordinary care, plaintiff cannot recover.

Judge refused plaintiff’s extraordinary care instruction.

Ordinary care: degree of care that prudent and cautious men would use as required by the exigency of the case and such as is necessary to guard against probable danger.

Trespass: immediate or direct injury, used to be strictly liable, this case expanded this

Trespass on the case:consequential or indirect injury, liable only if at fault

Adams v. Bullock 1919 Court of Appeals NY

A person must exercise reasonable care to avoid injury to others.

Facts: A 12 year old boy that came across bridge that was protected by a parapet 18 inches wide and swinged a wire that came into contact with trolley wire beneath the structure and he got shocked and burned.

Holding: Trolley company not held liable since no evidence that duty of reasonable precautions was ignored. Wire was placed in such a way that it will be hard to reach, only some extraordinary casualty not ordinary can cause it to be dangerous. No like accident had occurred before. Nothing could have warned defendant that special measure of precaution needed to be adopted.

*Professor thinks that Cardozo got it wrong because company could have at least put signs up of high voltage. He thinks issue should not be if they could have foreseen a kid with a wire, but they could have foreseen that someone can get electrocuted period.

Foreseeable determination: Law does not care about the circumstances leading to an incident being foreseeable but the actual accident being foreseeable.