Torts Outline

CHAPTER 1: INTRO TO TORT LIABILITY
Four Theories of Contract Law
– Justice: right a moral wrong
– Optimal Deterrence: create incentives to shape the behavior of individuals and institutions
– Loss Compensation: provide the victim with compensation
– Loss Distribution: how to spread victim’s loss throughout society
Elements of Tort Law
– Duty, Breach, Causation, Legally Cognizable Harm
Hammontree (3)
– Δ epileptic crashed into Π’s shop and injured Π
– Under strict liability, shifting of loss from Π to Δ depends on if Δ caused Π’s harm.
– Under negligence, shift relies on causation and if Δ’s behavior was wrong.
Respondeat Superior
– Places responsibility on employer regardless of blame as long as employee causes harm
– Christensen (18): Δ security guard took break, hit Π motorcyclist. Summary judgment inappropriate where reasonable minds could differ.
Scope of Employment
– Christensen: Employee is in the scope of employment when (1) engaged in general conduct hired to perform; (2) conduct occurs within hours and premises of employment; (3) conduct must be somewhat motivated by purpose of serving employer’s interests.
Ostensible Agency
– Principle, by its conduct, caused Π to reasonably believe that the agent was the employee or agent of the principal, and Π justifiably relied on the appearance of the agency.
– Baptist Hosp. (24): Π sues hospital b/c doctor caused injuries in surgery. Doc wasn’t a hospital employee. Independent doctor at a hospital is not an ostensible agent as long as the hospital didn’t cause Π to believe so and Π didn’t rely on the appearance of the agency.

CHAPTER 2: NEGLIGENCE
Components of Negligence
– Duty: A legal duty requiring Δ to conduct himself according to a certain standard, so as to avoid an unreasonable risk to others.
– Breach: A failure by Δ to conform his conduct to this standard.
– Causation: A sufficiently close causal link between Δ’s negligent act and Π’s harm.
– Harm: Actual damage suffered by Π.
Ordinary Care
– Duty of care for all tortfeasors is reasonable care under the circumstances
– Π has burden of proving that Δ did not use ordinary care. (Brown – dog fight)
– Ordinary care involves avoidance of foreseeable dangers.
– Adams v Bullock (38): Kid on bridge hit trolley wire with wire. Use of trolley wire within lawful exercise of trolley co. Placement of wire displayed ordinary caution.
– Carroll Towing (41): Barge sank while bargee wasn’t aboard. Absent a reasonable excuse, owner’s failure to take reasonable steps to prevent an unreasonable risk of barge breaking away by manning the barge is negligent. Court defers somewhat to industry custom.
– Bethel (47): Bus wheelchair seat broke. Common carriers must use reasonable care, not utmost care because of improved technology. Jury cannot decide common carrier injury case.
Learned Hand Formula
– Negligent if: B < P (L)
– B: Cost of preventing the accident
– P: Probability that the accident will occur
– L: Magnitude of harm that would occur
Reasonable Person Standard
– Δ must act as a reasonable person would under the circumstances.
– B & O RR (58): Driver killed on RR crossing. Driver who doesn’t stop to look for train is negligent. When a man crosses RR tracks, he knows that a train might come and he is in danger when crossing.
– Pokora (60): Trucker hit by train at RR crossing. Court questions B&O decision. Question of whether trucker acted reasonably by not getting out to look for train is a question for the jury.
– If Δ has a physical disability, he must act as a reasonable person with that disability would act.
– Δ’s mental characteristics (i.e. stupid) cannot be used as a defense, and Δ must act as reasonable person
– A child is held to act as a reasonable person of his age would act, unless the child was engaged in an adult activity (i.e. driving), then he is held to the reasonable adult standard.
– Some courts keep and some disregard the reasonable person standard for someone in an emergency situation.
Role of Judge and Jury
– Holmes Approach: Specific rules and standards should determine if the person was negligent. If the standard was not met, the judge should decide. (B&O; Baseball field fencing)
– Cardozo Approach: Specific rules and standards should not be established b/c every situation is different. Juries are a better judge of reasonableness that judge. (Pokora, Airline overhead compart.)
Custom
– When proof of a customary practice is coupled with a showing that it was ignored and this departure was proximate cause of accident, it may establish liability. (Shower glass – 67)
The Role of Statutes
– Violation of a statutory standard can be negligence, but not always. (negligence per se)
– It is sometimes allowed to fail to strictly observe a statute when observance may defeat the purpose of the statue and have potentially bad results. (Bro/sis on wrong side of highway not cont neg – Tedla 76)
– Legislature may impose a specific duty or standard of care to take place of reasonable person standard.
– Cannot excuse violations of law where violations are common practice. (Jaywalking)
– Statute must be designed to prevent specific kind of harm in question. (Riding on Sun. for public order)
– Compliance with safety standards does