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

Breach – what is the standard of care? And did Defendant fall below it?
Causation – Plaintiff must prove that Defendant’s negligence cause her injury

1) Establish Plaintiff’s case. Plaintiff must prove case by proving all four elements of a tort case (duty, breach, causation, injury)
2) Then defenses – contributory negligence, assumption of risk
3) Jury usually decides cases of breach and causation. Duty and injury are usually set/definite

Procedural items:
Summary judgment and directed verdict – no negligence as a matter of law. Reasonable people could not differ, or important social policy issue. Summary judgment happens before trial after discovery. Directed verdict happens at trial after plaintiff has presented case

Underlying POLICY
1. compensation
2. deterrence
3. corrective justice – restore to status quo
4. punishment
5. avoid violence/chaos
6. effective tort system – keep court costs down

I. Introduction to Tort Liability
A. Prologue
B. When Should Unintended Injury Result in Liability
i. Hammontree v Jenner
a) Facts – Def driving, suffer epileptic seizure & lost control of car. Crashed into shop owned by Pl and cause damage and injury to Pl. Def had history of medically managed epilepsy & followed all requirements to manage his condition. Could not foresee a seizure. Pl pursues action of “absolute liability.” Pl did not pursue negligence theory.
b) Holding – for Def. Would not consider “absolute liability” as a cause of action
C. The Litigation Process
i. aggrieved party initiate claim
ii. burden is on the plaintiff at trial
iii. directed verdict
iv. motion for summary judgment
v. judgment n.o.v.
D. The Parties and Vicarious Liability
i. Christensen v Swenson
a) Facts – security guard went to restaurant on break – hit another vehicle. Person hit sued security guard and her employer
b) Respondeat Superior – “let the master answer” – employer is responsible for the actions of their employees in the “course of employment”
c) vicarious liability – attachment of responsibility to a person for harm or damages caused by another person in either negligence lawsuit or criminal prosecution
d) Birkner Factors (for vicarious liability)
· employee’s conduct be of general kind the employee is hired to perform (must be about the company’s business)
· employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of employment
· employee’s conduct must be motivated (in part) by the purpose of serving the employer’s interest
ii. Roessler v Novak
a) facts – surgeon – independent contractor within hospital
b) Apparent authority – the appearance of being the agent of another (employer or principle) with the power to act for the principal.
· A representation by the purported principal
· reliance on that representation by a third party
· change in position by the third party in reliance on the representation
II. The Negligence Principle
A. Historical Development of Fault Liability
i. Brown v Kendall
a) Facts – action of trespass for assault and battery dog fight between dogs belonging to Pl and Def. Def attempt to break up fight by hitti

Bethel v New York City Transit Authority
· Facts – Pl fell and incurred a severe back injury when sat on a folding wheelchair accessible seat that collapsed. Pl argued that recent repair to seat put Def on “constructive notice” that the seat was subject to collapse, and that a proper inspection would have revealed the seat’s defect.
· Issue – whether a duty of extraordinary care for common carriers should be abandoned in favor of a duty of reasonable care.
· Holding – yes. Common carriers should be held to the basic standard of reasonable care for negligence cases.
· Because of this case common carriers are now uniformly held to a standard of reasonable care
b) Reasonable Person Jury Instruction
· Was Def as careful as they could be?
· Not a proper instructionbecause care should be reasonable not subjective to Def.
· What if Def intended?
· Doesn’t matter. It’s what you actually did; not intentions/state of mind. Action versus intention.
· What would YOU do?
· No. Should be a reasonable person standard.
· What if Def did what most would do?
· No. Doesn’t matter what custom may be. Should do what a reasonable person would do.
· What if person is in an emergency?
· Some states have an EMERGENCY DOCTRINE.
· Children?
· Elderly?
Mentally handicapped?