Prof. Jacobi Torts Fall 2013
Exams in General:
Long ass fact patterns, stories, spot issues and analyze
More than one issue, and also mixed issues
Battery = bodily contact
Smoking a blunt and blowing it in someone’s fact…Bodily contact?
Not knowing the answer means going through all the possibilities…this is a GOOD THING
Learn the SPECIFICS and EXAMPLES
Tort Defined: no single definition of “tort”. Most common interpretation is a (1) Civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement between the parties.
Tort Liability Standards:
Intentional Torts
Unintentional Torts
Negligence—causation as a result of carelessness to establish liability
Strict Liability: just need to show causation to establish liability
Vicarious Liability
I. When should there be recovery and why do We have a System of Recovery??
Compensation: the overall purpose of tort law is to compensate plaintiffs for unreasonable harm which they have sustained…make the injured party “whole”
*There is a slight element of compassion here at work…
Societal standard: the unreasonableness of the harm is generally measured from a broad “social utility” standpoint. For instance, in determining whether a D. is negligent…we look at the conduct from society’s view.
-We also want people to conform to a standard of behavior…not act crazy!
-Keep the peace, have a recognized system/place to promote peaceful conduct
-A functioning justice system is what a developing society looks for, in order to have economic weight
Economic efficiency: when the law takes into account the “social” piece of the D’s conduct, courts are to some extent trying to achieve economic efficiency. Try to impose an incentive to make sure that the costs associated with activities do not outweigh the benefits from those activities. Normally, a D. will not engage in conduct whose costs outweigh its benefits anyway; tort law addresses those cases where the D gets the benefits, but the costs are imposed on 3rd parties…(Posner idea)
Posner (efficient level of accidents)said: negligence-no moral indignation in the case in which the cost of prevention would have exceeded the cost of the accident.
-is he compassionate? : by not concentrating on the individual…greatest benefit for all (large number).
-money flows through a market economy—but our instinct toward compassion could lead to wasteful results…
-our ideas don’t always necessarily mesh—econ. V. compassion
-economic efficiency—instead might try to avoid accidents all together (products liability cases)…locate the person who is most able in the future…if we impose liability in the right place, might be FEWER accidents in the future…(EVERYONE is better off)
**This course deals mostly with unintended injuries. When and why should there be “recovery” – payment from the person who caused the injury to the person who caused it?
1. There should be recovery when the injuring party was being negligent (acting irrationally or failing to act in a situation others would or wouldn’t)
2. The defendant or one who injures needs to have made a CHOICE. And the public or an individual must suffer from this choice.
Strict Liability v. Vicarous Liability
1. Absolute Liability
Hammontree v. Jenner (1971)
-Case of driver having a seizure…knew he had a seizure disorder, but regulated it with medication, and was cleared to drive.
-Crashes through a store window and injures P.
-Withdraw the claim of negligence and attempt to pursue an absolute liability charge (like a products liability—lose!)
-Negligence is a standard of conduct, and Jenner did not fail to meet this (he was non-negligent)
*Court refused to extend theory of strict liability to drivers with a known physical condition that makes driving hazardous, mostly for policy reasons
Holmes: criticizes the use of strict liability generally and prefers negligence. Difficult to draw the line in holding people strictly liable for their acts. Leave loss where it lies in accidents unless the act is of a nature to forseeably threaten others.
Posner: cannot condemn a D for not having taken steps to prevent if the cost of prevention would exceed the cost of the accident. Leave loss where it lies unless preventative conduct would have been efficient
*Wants to reach an “efficient level of accidents”
1.Negligence Defined: what a reasonable person would do in a similar situation, or the failure to use reasonable/Ordinary care. The Ordinary or reasonable care is that care which a person uses or would use to avoid injury… (orginize by Duty, breach, causeation/cause, damages)
2. Shifting the Burden: law wants to promote economic efficiency, but we also have an interest in imposing the cost of the accident on someone, the courts generally attempt to place it one the party who can best bear it (covered by insurance for example)
*Note: this is sometimes at odds with “economic efficiency”
Juxtaposition of
No Liability
vs.
Absolute Liability (Social Insurance)—we all pay a price when something goes wrong…
Like Social Security = A large group of people are all benefiting.
Problems: It would cost a lot of money.
-A political problem
– Could increase the number of accidents—might be a moral hazard issue.
-Standard’s setting—you might not take the cautions/reduce the danger to try to be safe if there aren’t any economic consequences.
Three Types of Torts, Based on DEFENDANT’s CONDUCT
1. Intentional Torts (we will get to later)
2. Negligence
3. “Strictly Liable” –D’s conduct is not intentional nor careless, but he is made “strictly liable” because of the nature of his activity (abnormally dangerous, or products liability)
Change of System over time:
“trespass” case was not liable if he was completely without fault, but also that the Burden of proving fault should be on the plaintiff
**Brown v. Kendall
*Notes about solving a tort Problem:
Basic Requirements: are the basic requirements (the “prima facie case”) for the tort satisfied?
Are defenses available? Are there any defenses or justifications which the defendant can raise that would prevent him from
realize is unfit and poses a risk to others (example, bouncer with a violent past)—This would be a DIRECT negligence claim
Intentional torts: Respondeat superior MAY apply, generally “the master is held liabel for any inentinonal tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master’s business.
Independent Contractors: no general liability, one who hires an independent contractor is NOT generally liable for the torts of that person. However, there are exceptions.
1. Distinguised from employee: an independent contractor is one who, although hired by the employer to perform a certain job, is not under the employer’s immediate control, and may do work more or les in the manner he himself decides upon
EXCEPTIONS:
1. Non-delegable duties: some duties of care are deemed so important that the delegator is liable for negligence by an independent contractor the delegator hires, even if the delegator used all due care in selecting that particular contractor. These are non-delegable duties…DISSENT IN ROESSLER: if a person working in a hospital and performing medical services, hospital will be held liable whether they are an agent or NOT
2. If there is an APPARENT AUTHORITY
Rules/WHEN CAN A HOSPITAL BE LIABLE FOR AN INDEPENDENT CONTRACTOR : APPARENT AUTHORITY
1. A principle may be held liable for the acts of its agent if they are within the scope of the agency—even if not made through express agreement, some are liable for 3rd party acts if in scope
2.Apparent Agency
-Doctrine where management has manifested to the world that someone working within enterprise is an agent, creating appearance of relationship that may not exist
CRITERIA
a. a representation by the purported principle—hospital doesn’t hold this person as arms length, this person is a part of the hospital…they represent that he is ours
PRINCIPAL knows and allows agent to act under apparent authority
b. a reliance on that rep. By a 3rd party—if the patient believes that doctor is representing the hospital…believes he is part of it…(as if he is acting under the direct authority of the principal)
c. a change in position by the 3rd party in reliance(detrimental reliance—party is injured as a result of reliance) on the representation—apparent authority exists only where the principal creates the appearance of an agency relationship—THIS IS what’s driving the whole case…had to have had something done to them…making a choice/a judgement
