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

Fall, 2016 Torts Master Outline

Unit I – Central Themes, the Parties, and Vicarious Liability

General Principles

Negligence: Unless “strict liability” is the precedent, most tort cases rely on plaintiffs proving negligence –proof that plaintiff didn’t use reasonable or due care which resulted in harm. Different levels of care required varies depending on the type of case. (Plaintiff can ONLY win in instance where he/she is NOT mostly at fault and can also prove that Defendant was negligent.)

Strict Liability: Negligence doesn’t matter. If there was harm caused by you, you are responsible. Most commonly used in commercial product cases where products are forwarded to large numbers of consumers who are not expected to do further testing to ensure the products are safe.

Vicarious Liability: One party is liable for the negligent acts of a party over which it exercises control or authority while negligent party is under the control/within the authority of the party. (Employer/Employee; Parent/Child; etc.)

Respondeat Superior (“the superior responds”): Vicarious liability of employer with respect to employee. An employer is vicariously liable for an employee’s tort when that tort is committed within the scope of employee’s employment.

Restatement (of Agency): Section 7.07(2) of restatement of agency states: “An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”

See also Christensen v. Swenson for Birkner Test.

Restatement (third) of torts, Section 57: With regard to physical and emotional harm (section 58 – 65) – “An actor who hires an independent contractor is not subject to vicarious liability for physical harm caused by the tortious conduct of the contractor” unless – (a) “the services are accepted in the reasonable belief that the actor or the actor’s employees are rendering the services or,” (b) “the independent contractor’s negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability”.


Hammontree v. Jenner:

Facts: Hammontree was driving home one day when he had an epileptic seizure which caused him to lose consciousness. As a result he drove his automobile through the window of Jenner’s bike shop injuring Jenner and his wife and causing damage to the shop. Hammontree was aware of his condition and had made the DMV aware as well. He was seeking consistent medical care and was compliant with his doctor’s instructions. He was taking his required medication. His doctor authorized him to drive and the DMV allowed it as well.

Issue: Should Hammontree be held strictly liable for his actions and did the judge therefore err in not instructing the jury to find Hammontree strictly liable?

Holding: When a driver loses consciousness and is no longer capable of controlling his automobile, he cannot be found liable as he was not operating the vehicle negligently. Strict liability does not apply to auto cases and is different than product liability cases. Thus, the judge’s jury instructions were correct and the verdict for defendant is affirmed.

Reasoning: Product liability cases use strict liability because products reach a large number of people who do not and are not expected to subject these products to further testing to ensure their safety. It is therefore incumbent on manufacturers to thoroughly test their products to ensure that consumers are not harmed by them because the harm in this instance does not affect one party, but a large number of parties at once. This is not the case in auto accidents which is limited to the parties involved in that particular incident.

Christensen v. Swenson:

Facts: Swenson hits Christensen’s car on the way back from lunch. Swenson is Burns employee. Burns doesn’t give employees (security guards) lunch breaks but allows them 5 – 15 minute breaks for bathroom/to get quick lunches which they then eat on duty. There is a café nearby where employees are encouraged to get lunch. Swenson drove there and back to get her lunch quickly.

Issue: Was Swenson acting within the scope of her employment when the accident happened?

Holding: A reasonable jury could find that Swenson was acting within the scope of her employment and therefore the Burns’ MSJ is reversed and the case is remanded for trial.

Reasoning: Birkner Test used encompassing three criteria:

The employee must be about the employer’s business and the duties assigned by the employer as opposed to being involved in a wholly personal endeavor.

The conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.

The employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Court ruled that not all three have to necessarily be met to find that employee was within scope of duty. Court also ruled that a reasonable jury could find that she was on duty and serving the interest of her employer. She was also nearby to her place of employment. Jury could find one way or the other, so summary judgment was inappropriate.

Roessler v. Novak:

Facts: Roessler has emergency (ruptured septum) and goes to emergency room of Sarasota Memorial Hospital. Dr. Lichenstein reads his x-ray incorrectly leading to complications and months of further treatm

ss to it, the burden of proof shifts to the defendant in three different variations:

Inference Approach: The jury may infer that defendant was negligent unless he or she proves otherwise, but that’s up to the jury. They can choose not to.

Prima Facie Case: It’s assumed that defendant was negligent but plaintiff still has burden of proof.

Burden Shift: The burden of proof shifts to defendant.

Similar Locality Rule: Doctors in malpractice cases must be judged by other expert doctors in the same field. However, they don’t necessarily have to be in the same geographic area if it can be shown that there weren’t any doctors in the area that could or would be used.


Brown v. Kendall

Facts: Plaintiff and Defendant’s dogs were fighting. Defendant took a four-foot long stick and was beating the dogs to separate them. He was backing towards the plaintiff while swinging the stick around, beating the dogs. Defendant’s back was to the plaintiff as the dogs compelled defendant to back away. In this process, the stick that defendant was swinging accidentally caught plaintiff in the eye, causing serious injury.

Issue: Did the trial court err in instructing the jury to find defendant liable if he was not using extreme care in the act of doing something that was lawful but unnecessary?

Holding: The trial court did err. If a defendant is doing something lawful, it doesn’t matter if it’s necessary. A defendant going about his lawful business must use only ordinary care to avoid injury to others.

Reasoning: The proof at the trial court was all on the defendant, but it is up to the plaintiff to prove that the harm was committed and that it was committed negligently. Thus, a defendant must use only ordinary care. The plaintiff only wins in the case where the defendant was negligent and the plaintiff wasn’t.

Adams v. Bullock

Facts: Plaintiff was a boy of eight years old who was swinging an eight-foot wire around. In doing so, the wire came into contact with defendant’s trolley wire which was electrified. The plaintiff was burned and electrocuted as a result. The wire was out of the way and protected from casual contact with people passing by it.