Torts Outline

Professor Sheppard

TORTS OUTLINE

Spring 2012

Something is a tort b/c the law says it is wrong

Liable v. Not Liable

Survival statute- suing for harm deceased could have if they were alive- wages, medical expenses, pain and suff

Wrongful death- suing for recovery of intangibles such as loss of companionship

Part 1. Negligence

I. INTRODUCTION

A. Unintentional Injury and Liability

General Rule: Unintended injury results in liability when there is negligence

In the absence of a negligent act, courts will not impose liability

Hammontree v. Jenner

Unexpected seizure while driving a car resulted in damages to store and personal injuries

Court held: liability of driver rests in principles of negligence, not strict liability – Jenner’s seizure was unexpected/involuntary, negligence requires a choice

Justice Holmes: Negligence must have a choice piece and individuals only held responsible if at fault (i.e. failed to act reasonably)

May seem unfair that victims not compensated – but equally unfair to hold ppl liable for accidents beyond their control

No need to compensate every victim (e.g. struck by lightning) – sometimes it’s just bad luck/fortuitous event

Deterrence goal: can’t deter individuals from involuntary actions

Note: goals of tort system – optimal deterrence, justice, loss distribution, compensation for victims

B. Parties and Vicarious Liability

General rule: “respondeat superior” – employers are vicariously liable for torts committed by employees while acting in the scope of employment

LAF “scope of employment”

o Conduct of general kind hired to perform AND

o Conduct occurs substantially within hours and spatial boundaries of employment AND

o Conduct at least partially motivated by purpose of serving employer’s interest

“Torts” – requires that employee’s act be negligent

Different from strict liability – employer VL even if employee did not act negligently

Christensen v. Swenson

Employee caused injury while driving during lunch break

Sj issued; since many different ways to argue each element of “scope” (e.g. spatial boundaries: not on property but within geographical boundaries accessible for length of break), reasonable minds could differ and matter went to jury

Policy reasons for VL: motivation for employer to be selective in hiring/supervising, serves interest of justice (if no VL, employer could push employee to engage in risky behavior for own benefit with no responsibility falling on employer)

Conduct of employee applicable to VL:

Contrary to rules enacted by employer

i. note case – driver drove drunk even though against rules to drink on job

Intentional

i. note case – postal employee intentionally struck another b/c other not performing job correctly (can argue both VL and not)

Independent contractors

“One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself”

Generally, no VL b/c no control over work/how it’s done – but some jurisdictions will impose liability

Apparent agency – VL if:

i. Representation by principle that there is agency relationship AND

ii. Reliance on representation of relationship AND

iii. Change in actions (detrimental reliance)

Roessler v. Novack – patient negligently treated by doctor independent contractor, but also sued hospital – hospital assigned dr. to patient (rep.), patient accepted hospital’s assignment and allowed treatment (reliance), patient didn’t seek second opinion/shop around for another doctor (change in actions). Hospital was held liable b/c it permitted the appearance of authority in the agent.

Protections from apparent agency – employer wants to put ppl on notice that contractors are independent – (signs, requiring signature on release, etc.)

II. DUTY

A. Introduction

General Rule: A person has no obligation to affirmatively act for the benefit of others,

unless one of several exceptional circumstances

Common law does not establish a duty except in certain circumstances in order to:

Respect autonomy

Draw a line at which point liability is imposed (and even when duty imposed, there are limitations as to actions required to fulfill that duty – e.g. child abuse reporting statutes only require phone call, not direct intervention)

Harper v. Herman – “The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not itself impose upon him a duty to take such action…”

No duty to inexperienced swimmers on boat- even if they said they were going to jump (shallow waters)

i. B/c the boat owner’s relationship with the guests does not fall into a category which generally gives rise to such a duty

Determining existence of duty

Is a question of law for the JUDGE to determine

Whether duty carried out in reasonable manner is question of fact (ie jury determines negligence)

However, it may be question for jury to determine if facts in specific case place person in already established categories of when/where duty exists

Misfeasance v. Nonfeasance

Misfeasance: Engage in some activity and fail to act reasonably (liability more likely)