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Rutgers University, Newark School of Law
Gonzalez, Carlos

I.                   Introduction to Tort Liability
A.    Fundamental issue of tort law: when should losses be shifted from an injury victim to the injurer, or some other form of compensation?
B.     Standards:
i.           strict liability – the cost of accidental harm shift from the injured to the injurer in any circumstance; applicable in few situations
ii.         negligence – cost shifts if the injurer was the cause of the injury, and breached a duty
[Hammontree v. Jenner [CD1] – car accident from seizure = no shift in L] C.     damages – the traditional goal is to bring the plaintiff back to her position before the harm/injury occurred
i.           remedies: mostly monetary; others include injunction, retraction
ii.         statue of limitations – a party may only sue for a harm within the allowed time, as dictated by statue
iii.       lump sum award – once a judgment and damages have been decided the party can not sue again for the same tort
iv.       collection of damages: voluntary, seizure, garnishing portion of wages… 
v.         contingent fee system has developed – only successful parties will pay a predetermined fee to their attorney (from the damage award)
II.                Vicarious Liability
A.    vicarious liability – D held responsible for the tortuous acts of another person based solely on the relationship between the two persons.
B.     Respondeat superior – (doctrine) an employer is vicariously liable for the tortuous behavior of an employee acting in the scope of employment
i.           respondent superior does not turn on negligence, it imposes strict liability on an employer when his employee commits a tort within the scope of employment[CD2] 
ii.         “Within the scope of employment” if, and only if: court must address all three criteria, but not all three have to be satisfied to employer liability!!
1.      the conduct is of the kind hired to perform
[employee must be doing the employer’s business and the duties assigned by the employer; conduct cannot be of a personal endeavor] 2.       the conduct is in the authorized time and space limits
3.      conduct must be motivated, at least in part, to serve the interest of the employer
4.      if force is intentionally used, the use of force is not unexpected-able by the employer [not mentioned in Swenson] [Christensen v. Swenson [CD3] – accident while driving to get lunch] iii.       Birkner – the employer can be found liable if the employee was even partially within the scope of employment
iv.       theories on why respondent superior is used:
1.      gives employers incentive to shrewdly select employees and to effectively supervise
2.      incentive to discipline employees who commit negligence, exposing employer to liability
3.      incentives to consider alternatives to employees, such as autonomization – admitting employee negligence can never be fully eliminated
v.         right of contribution – when employers are held liable through respondeat superior, the employer can seek recovery from the employee
vi.       A principle is liable under vicarious liability…for the acts of its agent (independent contractor) if the principal permits the appearance of authority in the agent).
Liability occurs when
àAgent’s acts are within the scope of the agency;
àOR, acts are within the apparent authority of the agent
1.      an agent has apparent authority if:
1.      representation of authority is made by the purported principle
2.      reliance on the representation by the third party
3.      third party, acting in reliance, changed position
·         2&3 are often collapsed to “detrimental reliance”
[Roessler v. Novak [CD4] – doctor independent contractor or agent?] vii.     Restatement §409: an employer is not vicariously liable for the acts of an independent contractor; exceptions:
1.      apparent authority
representation of authority; reliance; changed position.
2.      contractor fails to use precaution in light of a particular risk
3.      car accident: victim à owner/driver à mechanic
viii.   the law looks at employment/independent contract situations in light of the level of control/instruction/supervision given

Is the tort feasor an employee or independent contractor?
Employee – was the tort within the scope of employment? (3 f. test)
Independent Contractor – Non-delegable duty?
No – no respondeat superior
Yes – respondeat superior applies
No – is apparent agency?
Yes – respondent superior applies
Yes – respondent superior applies
No – no respondent superior

III.             The Negligence Principle
A.    Constructing “Reasonable Care”
i.           historically, strict liability was extended in limited situations; based on British law
ii.         in America, early tort cases were classified under trespass on a person
iii.       Brown v. Kendall [CD5] (stick used to pry fighting dogs) – sparked the use of the ordinary care standard in determining liability for accidental injury
iv.       What is reasonable care?
1.      BPI
2.      Average level of moral standards in the community?
3.      is the risk of harm (P) so small that a reasonable person would disregard it?       [Bolton v. Stone – cricket ball] 4.      Foreseeability of harm (based on what is apparent at the time of the accident)

[Green v. Sibley – tripping over mechanic’s foot in dept store
What is foreseeable is based on what is apparent at the time of the accident. If harm is obvious, then there is no foreseeable danger]
[Adams v. Bullock [CD6] – trolley line electrocution of “kid swinging the wire]
v.          (Hand) Formula:  B< PI = N: D is negligent if the burden of preventing the harm is less than the expected value of harm 1.      deceptively simple formulation; had been used by court’s implicitly, but expressly state in US v. Carroll Towing (barge)[CD7] [Krayenbuhl – unlocked railroad turntable: A boy playing with a track’s turntable gets his leg caught and severed. When danger of machinery to humans can be predicted then there needs to be restrictions.] 2.      purpose (Posner): reduce the total cost of accidents 3.      BPI is not law, never offered in instructions 4.      Complications in application 1.      evidence presented at trial does not always quantify the variables [McCarty v. Pheasant Run – hotel sliding door] 2.      difficulty in assigning a dollar value to some harms 3.      P varies with severity of injury (L) B.     Constructing the “reasonable person” i.           public carriers 1.      utmost care standard – replaced by the reasonable care standard in Bethel v. NYC Transit Authority [CD8] [collapsed bus seat] 1.      utmost = so far as human skill and foresight can go 2.      when instructed to jury, may be an impossible standard to ever meet 3.      outdated 2.      a few states still hold the utmost standard for public carriers ii.         in circumstances where warranted, the utmost care standard is still used: 1.      college campuses 2.      safekeeping a handgun in a house with a child [Wood v. Groh] iii.       emergency doctrine – a jury charge explaining whether more/less/equal duty of care is due as under reasonable care (but reasonable care probably accounts for the emergence situation anyways) C.     The Role of Judge and Jury i.           matters for the jury are


[CD5]A person that takes a degree of (ordinary/reasonable) care and diligence required for the circumstances and UNINTENTIONALLY harms another is not liable for their injury.

P must prove that the D did not use ordinary care

[CD6]D NOT NEGLIGENT. He adopted all reasonable precautions to minimize foreseeable perils, this accident was not foreseeable, therefore he is not liable.
Unforeseeability of accident = no recovery

RULE: Ordinary caution does not involve forethought of extraordinary/unforeseeable danger. 

Not forseeable + took ordinary care precautions (adamsà not negligent) VS. forseeable + no precautions (negligent)

[CD7](Burden of cost < Cost of Injury x Probability of occurrence)=N Probability of occurrence: can be things like wartime, stormy weather, busy location, etc—general surrounding conditions that can elevate the occurrence. [CD8]A common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case. [CD9]                THE QUESTION OF DUE CARE IS GENERALLY LEFT TO THE JURY. BUT WHEN THE STANDARD IS CLEAR, THE CT RULES. [CD10] THE LEGAL STANDARD OF A TRAVELER IS “LOOK AND SEE” (not get out of the car and see) -          A jury determines if faculties were limited or not and driver was negligent in getting hit on RR. [CD11]Custom, as below, wasn’t an issue b/c only few airlines-only one-instituted netting. That is inadmissible evidence to measure customary practice in a business. For that reason the issue in this case focused on cost and Foreseeability (hand formula) [CD12]SUM: When proof of a customary practice is coupled with a showing that it was ignored and that ignoring it proximately caused the accident, that can establish liability. Customary practices does not have to be universal. BUT once customary practice is well defined and in the same business, the jury must determine if it is reasonable. Then, the actor’s knowledge can be a negligent ignorance. [CD13]Caused injury w/ a statute Goes to Judge Statute states reasonable conduct/care; if not followed ur probably negligent (martin) UNLESS there is good reason to depart from the statute (tedla). Caused injury w/o a standard in place Goes to jury Decides what the standard would be for reasonable conduct under the circumstances (can look at customs, foreseeability, hand test) [CD14]A general rule of conduct accomplished its purpose to protect life under usual circumstances, but when the unusual occurs, strict observance may defeat the purpose of the rule and produce bad results, which is not the intent of the law. In these unusual circumstances of good reason, the injured is excused from violating the safety statute. [CD15] (P) car broke down on the highway. The statute says that car must be illuminated. (D) hit the car and injured P. Although statute states standard, it isn’t applicable here b/c P was unable to light the car—electrical damage.