Torts Outline

Torts Outline

Ewing 2012

1.) Negligence versus Strict Liability

Hammontree v. Jenner (CB 3). Choice between negligence or strict liability standard for an epileptic D who crashed car into P’s property. Strict liability has a foreseeability standard, negligence is premised on a reasonable person standard. In negligence, if the harm is foreseeable but you act as a reasonable person would have, you’re not liable. Strict liability has a non-fault standard (i.e. demolition work or keeping wild animals).

Court rejects the comparison to products liability, where manufacturers distribute goods to the public and are part of the producing and marketing enterprise that should bear the costs of injuries from defective parts. Court opts for negligence standard.

Holmes (pg. 6) in criticism of strict liability standard:

1.) You don’t want to hold people liable for acts that cause extremely remote harm. The logical extreme is that

2.) Vicarious Liability

Christensen v. Swenson (CB 18). Three Birkner criteria for determining if employee’s activity was within the scope of his employment:

a. the employee’s conduct must be of the kind the employee is hired to perform

b. the employee’s conduct must occur substantially within the hours and spatial boundaries of employment.

c. the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Court found employee’s conduct could have satisfied these, so there should be a trial.

Schwartz article (pg. 22) gives justification for employer vicarious liability:

a. Gives employers incentive to carefully select and supervise employees.

b. Gives employers incentive to discipline negligent employees, which acts as a deterrent and dismisses gross violators.

c. Incentive to move to mechanized technology instead of employees who could be negligent.

Foster v. The Loft (23). Plaintiff claims bar is directly liable because they were negligent for not screening employees and hiring a bartender with a record of assault. Court says a jury could reasonably find the owner directly liable for hiring such a person in an environment with a high risk for violence.

Baptist Memorial Hospital System v. Sampson (24) – The default rule is hospitals aren’t liable for the torts of their independent contractors. Ostensible agency requires a showing that D induced a reasonable belief that the doctor was their employee. Apparent agency only requires P to show that he reasonably believed there was a relationship. The court says the rule is ostensible agency, which requires more of P. There were signs and forms stating doctor was contractor, so P’s claim fails.

Under Restatement 267 (25) defining ostensible agency, there’s a conduct requirement, a causation requirement, and a reliance requirement. All three must be met to determine ostensible agency.

Non-delegable Duties – For these, P is always responsible for conduct of its contractors just as if they were employees (demolition, wild animals, etc.)

Fault v. Strict Liability

Brown v. Kendall (33) – Established the “ordinary care” standard of care, with the burden of proof on P to show D’s failure to exercise such care. Ordinary care defined as the care a prudent man would take in a similar situation. After this case, case swallowed up trespass into one general category of unintentional harm. Policy consideration of not wanting to discourage industry from taking risks. This is growing out of the utilitarian tradition.

Bamford v. Turnley (SM 2)– kiln spewing smoke onto neighbor’s property. Judge Bramwell advocates an absolute liability standard. Says industry should bear its own costs to society. It’s a fairness argument. This is an absolute liability standard and somewhat utilitarian.

Holmes “The Common Law” (pg. 4 SM 1)

Critiques the use of absolute and strictly liability standards. Defends the negligence standard. Using mere causation, and not foreseeablity or due care, as the standard means you could constantly drive to find people liable for any harm done in society in an unlimited chain of causation. As a matter of basic justice and morality, absolute liability is out. The harm has to be reasonably foreseeable. Action cannot be avoided, and one shouldn’t be penalized simply for acting.

4. THE STANDARD OF CARE

For the standard of care, the question put to the jury is generally what a reasonable person would have done in the same or similar circumstances (Restatement 283: To avoid being negligent, actor must act as “a reasonable man under like circumstances.”) This is an objective standard and the subjective belief of D at the time is immaterial.

a.) Bolton v. Stone (SM 15) – Cricket case. Although the risk was foreseeable, the likelihood of harm was so remote that it was reasonable not to take precautions. Only six balls had been hit in 30 years, and it was a very quiet road, so no liability. However, judge noted that at a certain point the risk of harm may grow so large that you can’t do an activity at all, regardless of your precautions (high extreme of Learned Hand).

b.) Adams v. Bullock (38) – 8 ft. wire case. Cardozo says the casualty was extraordinary, not fairly within the realm of ordinary foresight. It’s foreseeable that someone might get electrocuted somehow, but defendant doesn’t have to foresee a kid with an 8-foot wire playing on a bridge. He treats reasonable foreseeability as a prerequisite for liability. Cardozo says no reasonable vigilance could have prevented the harm.

Informal balancing test to determine standard of care: factors of probability, risk, cost, foreseeability. In Braun v. Buffalo (empty city lot, uninsulated wires) Cardozo uses same factors but find the harm was reasonably foreseeable and liability may flow.

c.) Carroll Towing (41) Learned Hand Formula: where B(urden) Adopting this method to determine the standard of care will cause parties to spend the right amount on precautions.

A negligence rule and a strict liability rule, when