TORTS_I_Jacobi_Fall2010.docx
Introduction
A. Intro to Tort Law and the Litigation Process
1. Theories of Tort Liability
a) Intentional (i.e. assault, battery)
b) Unintentional
(1) Negligence
(2) Strict liability
(3) Defective products liability
c) Vicarious liability (one is liable for the acts of another)
2.
B. Vicarious Liability
1. Respondeat Superior
a) Two requirements: (1) employee must have committed a tort/been negligent, and (2) employee acted in scope of employment. If both met, employer is liable.
b) Birkner Test: (1) conduct of general kind employee was hired to perform, (2)conduct must occur w/in hours and spatial boundaries of employment, and (3) conduct must be at least partially motivated by serving employer interests
c) Employer is in the best position to control activities, conduct, etc. of employee and should be liable.
2. Apparent Agency
a) Can be used when tortfeasor is not an employee.
b) A representation does not have to be express to be satisfied. If the agency presents to the world the appearance of an agent relationship, court will likely impose liability. A good barometer is the belief of a client/customer/patient. (Roessler v. Novak)
3. Non-Delegable Duty – referenced in concurring opinion of Roessler. Certain duties cannot be delegated within certain circumstances. Concurrence felt it eliminated the case-by-case nature of apparent agency in favor of a more standardized approach.
II. The Negligence Principle
A. Historical Development
1. Distinguish trespass(act of force results in direct harm) and trespass on the case (act leads indirectly to harm)
2. Plf bears the burden of showing carelessness/negligence (Brown v. Kendall)
3. Plf can only recover if def is negligent and plf is not negligent
B. Central Concept
1. Standard of Care
a) Operating something dangerous is not necessarily negligent. Act with care, but extraordinary perils need not be anticipated. However, the creation of needless risks may constitute negligence. (Adams v. Bullock – exposed trolley wire, contrast with Braun case with needlessly exposed wire (Cardozo op.) where there was negligence)
b) Some use balancing of burden of taking precautions with the probability and gravity of the loss (Hand formula – B><PL)(Carroll Towing)
c) Lord Reid advocated eliminating B from the equation, urging to look toward whether a reasonable person would undertake an activity given the likelihood and severity of resulting harm. “if cricket cannot be played without creating subst. risk, should not be played at all”
2. Reasonable Person – objective standard taking into account the circumstances
a) Some jurisdictions still use a standard of “utmost care” (i.e., in cases of common carriers), most use reasonable person standard given the circumstances and nature of the activity being undertaken. Belief is that reasonableness accounts for the extra care taken in riskier circumstances (Bethel v. NYC Transit)
b) Some impairments allow for an adjustment of reas. prs. standard with phys disabilities and children – reas. blind prsn. – but reluctance in extending to mental incapacities (more difficult to diagnose)
c) Custom and reasonable care usu coincide, but where they do not, hold to what ought to be done rather than practice. Repetition does not make a thing right.
C. Role of Judge and Jury in General – in general, the question of breach usually goes to a jury (question of fact)
1. RR cases – similar cases, but Goodman case decided by judge, Pokora case sent to a jury.
a) Goodman – Holmes says clear set of rules is more efficient, and when the std is clear, should be laid down by ct. Judges have seen cases enough to know norms better than a jury would
b) Pokora – Cardozo points to a case-by-case, contextual approach. Circumstances can differ enough to merit different outcomes. The norm or reasonable person adjusts in different circumstances and over time, therefore send to a jury rather than deciding by set rule.
2. When the standard is ordinary care, and B>PL, then
ontrary (minority)
c) Shift burden of pers – jury cannot reject inference unless def brings evidence that it is more likely than not that def was not negligent (special circumstances/cases)
7. Third element to res ipsa loquitur – accident not due to voluntary action or contribution by plf
8. When there are a number of potential actors, one of whom definitely had exclusive control of the supposed instrumentality, there are policy reasons to recognize the inference and place the burden of production on def (Ybarra v. Spangard).
a) Defendants in the best position to know which def was responsible. Avoidance of the conspiracy of silence
b) Without allowing the inference, plfs who do not know the exact series of events (i.e. unconscious plf) would be unable to recover for the accident.
H. Special Case of Medical Malpractice
1. The plaintiff has the burden of establishing:
a) Relevant, recognized std of care observed by reasonably prudent med prof w/ certain set of skills, knowledge, training, etc in the field. Custom sets the standard!
b) Breach of that std
2. Expert testimony is different, critical in med mal
a) Must be qualified – expert in field of alleged malpractice, not field of negligent practitioner
b) Allowed to give opinions as to the std of care
c) Once had similar locality rule – now more universal. Expert does not have to be in same region as negligent doctor to testify to std (Sheely v. Mem Hosp)
3. Ways to defend expert testimony in med mal
a) Call your own experts
b) Discredit expert by showing he’s getting paid
c) Show he’s a career expert, pattern of test for 1 side