Torts Outline
CHAPTER 1: INTRODUCTION TO TORT LIABILITY
A. Prologue
Tort-is a civil wrong committed by one person against another
· Outside of any agreement by either party
· Tortfeasor-wrongdoer in a tort case
Different theories of Tort Liability
1. Intentional-ex. Assault/battery-an intent to commit the civil wrong
2. Unintentional-accidental occurrences that led to harm
a. Negligence-is the result of the def. acting carelessly
b. Strict liability-one is liable to another even though they were careful
3. Defective Merchandise-
4. Vicarious Liability-Liable due to the actions of another within association (ex. Someone sues trucking company for accident involving a trucker)
Fundamental Questions
· When should the loss be shifted to another?
· What kind of circumstances should the victim incur the loss?
· Is tort law effective in creating the kind of incentives we want to deter actions? Is it too effective and over deter risky actions?
· Is litigation system cost efficient and is it effective? Compared to administrative system?
B. When Should Unintended Injury Result in Liability
Hammontree v. Jenner (1971)
· Facts- Pl. had seizure and crashed car into bike shop, aware of condition but took proper legal steps
· Issue-Is the case an issue of negligence or strict liability?
· Finding-negligence applies-found that a rule of strict liability would be confusing in ability to administer.
o court never used strict liability in automobile incidents
· Implications
o Society could have had to bear cost-Pl. innocent victims with no wrongdoing might not be able to bear cost.
o if court establishes rule of strict liability-will greatly discourage those with pre-existing conditions from driving-economic/social costs to society as whole
O.W. Holmes argument
· Loss should fall where it lies; strict liability too broad
Posner argument
· The cost of prevention is greater than the cost of the action than the action should not be avoided
·
Absolute v. Strict Liability
· Distinctively different
o Absolute-have to prove they are at fault
o Strict-at fault even though it was unintentional and they were careful
C. The Litigation Process
Litigation Process(Chart in Notebook)
D. The Parties and Vicarious Liability
Party seeking the relief bares the most burden in providing the proof
· Criminal Case-“beyond a reasonable doubt”
· Civil Case-“More likely than
Vicarious Liability-a form of strict liability
Respondeat Superior
Apparent Agency
Non-Delegable Duty
“Respondeat superior”-an employer is being held liable for the torts of his or her employees
Criterion
oyee to rush recklessly
Apparent Agency
Appearance of an agency relationship
More appropriately it would be called “apparent employment”
Ex. McDonald’s claiming that you can not sue them if you slip at a restaurant, you have to sue the franchise-the franchise is an apparent agency
Part of respondeat superior
· Criteria
· A representation by the purported principal
· A reliance on that representation by the third party
· A change in position by the third party in reliance on the representation
· Reason
§ Can not have appearance of power over agent but not be liable under respondeat superior
Roessler v. Novak
· Issue: Hospital Claim not liable if radiologist is “independent contractor”
· Holding: Are liable-Apparent Agency
· Concurring Opinion
o A lot of uncertainty with belief
o Proposes “Non-Delegable Duty”
Non-Delegable Duty
· Issues that deserve significant care-the delegator is still liable for the independent contractor
Handout #1: Employees and agents are not the same thing
