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Rutgers University, Newark School of Law
Gonzalez, Carlos

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.

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.)
– 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

Yes: 1)Action/activity w/ risk
Ex: Attempt to save, rescue…(Farwell)
2) No Action or Activity if… ———-Special relationship
———–create risk
———–injure person

———————-NO: No action

Duty to Rescue
– General rule is that a person does not have a duty to aid, assist, rescue another person, even if he could aid with no risk or effort.
– Exceptions:
o Special Relationship: doctor/patient; parent/child; captain/seaman; hotel/guest; school/student; common carrier/passenger, prison/prisoner, contract relationship: babysitter/child; employer/employee
o Co-Adventurers (Farwell – guy left friend in car overnight and he died)
o Promise to aid that was relied upon
o Δ created risk or perilous situation(Randi W.-school sent letter of rec. and student was sexually harassed)
o Duty to not prevent rescue or aid (Farwell)
o Duty to avoid any affirmative act which may make situation worse (Farwell – left passed out friend in backseat of car overnight and he died)
o Rescuer is obligated to act reasonably once he has begun to aid
– Harper (134): Guest dove off host’s boat into shallow water. Boat owner has no duty to the guest because there is no special relationship. Actual knowledge of a risk without a special relationship does not show negligence.
– Strauss (144): Man falls down steps in blackout. Public utility does not owe duty to those who it does not have a contractual relationship with. Not in public interest to hold utility liable.(crushing liability)

Duty to Control(Duty can defer tremendously from state to state)
– General rule is that a Δ does not have a duty to protect Π from third parties, except when Δ has a special relationship and actual or constructive knowledge of the need for control.
– Tarasoff (157): Δ didn’t tell victim that patient said he’d kill her. Therapist has a duty to exercise reasonable care to protect foreseeable victim when he knows that patient poses serious threat of danger or pursuant to the standards of their profession should have determined the danger.