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Torts
Southern Illinois University School of Law
Kapp, Marshall B.

Chapter 1 (Intro)
Vicarious Liability and Employer Responsibility
Occurs when one party is liable for the negligence of another party by reason of some relationship between the parties
General Rule – An employer is vicariously liable for the negligence of an employee that occurs within the scope of the employment (clear)
                                                              i.      Exceptions:
1.      Independent Contractor – No VL (Kime case and tractor trailer)
                                                            ii.      Exceptions to the exception (Hiring party liable for VL)
1.      Activities that are “inherently” dangerous
2.      Activities that courts declare “non delegable”
Chapter 2 (Breach of Duty)
The Reasonable Person
General Characteristics (Objective standard)
                                                              i.      General Rule – Where there is a foreseeable and unreasonable risk of harm from a certain type of conduct, a person has a general duty of reasonable care, where there is a relationship by duty, to make sure no harm or injury is caused by that conduct (foreseeable harm and unreasonable conduct)           
                                                            ii.      What would a reasonable person do under the circumstances?
Reasonable Men and Women
                                                              i.      Distinction between men and women does not matter since it is part of the circumstances (how a woman acts vs. how a man acts)
Emergency
                                                              i.      Emergency situations are considered by the jury as part of the “circumstances” – i.e. still compare what a reasonable person would do
Physically Different Characteristics
                                                              i.      Held to a standard of a reasonable person with a similar disability (i.e a reasonable blind person, deaf person etc) – objective
1.      Raises the standard of care for the disabled so they should have a higher burden to prevent foreseeable risks with their disability
Mentally Disabled Individuals
                                                              i.      Standard of care for the mentally disabled and the insane is that of a sane, mentally able person
1.      Hard to draw the line between someone who is mentally deficient or someone with a bad temper or emotional balance – subjective
Children
                                                              i.      Children are held to a standard based on what other children of like age, intelligence, experience, and maturity would have done under the circumstances – based on mental capacity not age
1.      Exception: (held to an adult reasonable standard)
a.       Inherently Dangerous activities
b.      Adult activity
Developing the Reasonable Standard of Care
Balancing Risk vs. Untaken Precautions
                                                              i.      United States v. Carrol Towing
1.      B < (P x L) – Judge Hand Formula a.       Burden of reasonable precautions has to be less than P x L b.      P – Probability of risk occurring c.       L – Gravity or severity if the risk does occur 2.      If the costs of providing reasonable precautions is less than P x L, one has to take those precautions 3.      If the costs of providing reasonable precautions is more than P x L, the precautions are not reasonable and do not have to be taken                                                             ii.      Financial status of the tortfeasor is irrelevant to whether they acted reasonable under the circumstances (under common law) 1.      If one cannot meet the standard of reasonableness, they should not provide the service Role of Custom                                                               i.      Relevant customary practices are generally allowed into evidence to guide juries in determining the reasonableness of a party’s conduct 1.      Can be used to show deviance or compliance with customs                                                             ii.      Customs are not necessarily always correct and reasonable 1.      T.J. Hooper and boat radios a.       When precautions are available and reasonable, the tortfeasor is liable to take those precautions despite customary practice (B< P x L) Alternatives to the Reasonable Care Standard Specific Judicial Standards                                                               i.      Holmes views that minimum standards of reasonable care can be evolved by judges as rules of law to substitute for the reasonable care standard                                                             ii.      Cardozo’s view is that a special standard is not for the courts to decide 1.      They do not take into consideration all the variables at play in each accident situation Safety Statutes                                                               i.      Substitute relevant safety statute or regulation for the reasonable care standard (Look at 2 things): 1.      Was the P a member of the class of persons the legislature sought to protect? 2.      Was the harm suffered by the P the type of harm the legislature sought to protect against?                                                             ii.      Relationship of Statutory Standards to the Reasonable Care standard (pg. 171) 1.      Negligence Per Se – it is negligence itself and not evidence of neg a.       Statute and regulation becomes the standard b.      No excuses unless written in the statute violated 2.      Presumption of Negligence – allocates the burden of proof to the D to show that even though the D violated something, he/she was acting reasonably under the circumstances a.       given more weight than some evidence, but les

articular information before receiving treatment
1.      Movement from professional standard to patient oriented standard
Legal Malpractice and the Liability of other Professionals
                                                              i.      When advising clients, a professional should be held to the standard of customary practice, in his/her respective field, that other skillful, prudent, and diligent peers follow as well
Chapter 3 (Duty)
General Duty of Reasonable Care
MacPherson v. Buick Motor co
                                                              i.      Law can impose obligations on people to act reasonably, even if we don’t have direct contact with that person (privity of contract) – i.e. forseeability creates duty to prevent the risk
Limited Duty Rules
Limited Duty: Duty to Act, Assist, or Rescue
                                                              i.      General Rule – No duty to act reasonably unless the party has engaged in affirmative conduct creating the risks of harm that resulted in the accident
1.      Exceptions:
a.       Special Relationship
                                                                                                                                      i.      When there is a special relationship between who people, where one knows or could know of imminent peril, and he/she will not endanger themselves by helping a victim, one owes a duty of reasonable care to help
                                                                                                                                    ii.      Statute – Good and Bad Samaritan laws (Seinfeld)
b.      Innocent prior conduct
                                                                                                                                      i.      Where innocent conduct places someone in peril
c.       Reliance on a Gratuitous promise
                                                                                                                                      i.      Justifiable reliance on a promise
d.      Intentional Prevention of Aid by others
                                                                                                                                      i.      Refusing reasonable aid that leads to injury (phone call to police etc)