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Temple University School of Law
Glennon, Theresa

Fall 2012
Professor Glennon
Temple Law
I. To recover for negligence, the plaintiff must establish each of the following elements by a preponderance of the evidence (that is, by more than 50%) to establish a prima facie case:
A. Duty of reasonable care
B.     Breach of that duty
C.     Cause-in-fact
D.     Proximate Cause
E. Resulting Damages
II. Tort Liability – When is Unintended Injury Tortious?
A. Hammontree v Jenner (Cal. 1971) [strict liability vs. negligence standard] 1.  ∆ had seizure while driving, crashed into π's shop causing damage.
2.      ∆ had a history of seizures, but was cleared to drive by doctor
3.      π argues for a Strict Liability Standard similar to that seen in products liability
4.      Court holds that the standard is Negligence, not SL. Seizure was not foreseeable (arguably)
a.  Took every reasonable precaution, driver is not liable
b.  But, consider if ∆ knew he would probably have seizures, or if he had one while driving earlier. Then, there might have been negligence found
III.          Vicarious Liability (Respondeat Superior)
A. A form of strict liability – employer is liable for employee's negligent acts/omissions if employee was working within the scope of employment
B.     Christensen v Swenson (Utah 1994) [scope of employment] 1.  ∆ is guard at Burns' plant. During shift, ∆ drives across street to get food, hitting π in process
2.      No doubt Swenson was negligent. But was Burns (employer) vicariously liable for the employee's actions? Only if employee (or independent contractor with apparent authority) working within scope of employment
3.      Scope of Employment -> Birkner Test
a.  General kind of conduct hired to perform
b.  Substantially within the hours and spatial boundaries of place of employment
c.  Motivated at least in part by the purpose of serving the employer's interest
C. Roessler v Novak (Fla 2003) [employee vs independent contractor] 1.  π goes to hospital and is incorrectly diagnosed by Dr. Lichtenstein
2.      Hospital claims Dr. is an independent contractor
3.      Negligent Supervision
a.  Employment of improper persons (negligent hiring)
b.  Supervision of the dangerous activity
c.  Permitting or failing to prevent tortious conduct by employee
D. Employee vs Independent Contractor (IC)
1.  Master is authorized control over the details of the work.
a.  More supervision = more likely viewed as employee
2.  Whether actor is engaged in a distinct occupation or businss
a.  Personal chef (employee) vs. one-time lawn mowing (IC)
3.  Skill level required of task
a.  Tasks requiring specialized skills tend to be done by ICs
4.  Who supplies tools, other equipment, and place of work
a.  Go into work every day vs. work from home
b.  Tools supplied vs. bring your own tools
5.  Payment on a time basis or per job
a.  Hourly pay = employee
b.  Paid at completion of task = IC
6.  Whether employer is in business, and whether the work is part of the employer's regular business
a.  A jeweler hiring someone to cut diamonds = employee
b.  A jeweler hiring someone to renovate store = IC
7.  Parties belief as to the nature of the relation
a.  Receive benefits? Treated like employee?
8.  If IC, does he hold himself out as an employee (apparent agency)? If yes, then treat as employee
E. A principal (employer i.e. hospital) may be held liable for the acts of its agent within the course and scope of authority. An independent contractor might still be considered employee if apparent authority is found. It is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing
1.  Principal is not permitted to deny apparent authority when: “Principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent”
2.   Three part test (inclusive)
a.  Representation by the purported principal
b.  A reliance on that representation by a 3rd party
c.  A change in position by the 3rd party in reliance on the representation
d.  Principal must create the appearance of an agency relationship
Duty and Breach
I. Tortfeasor must owe the π a duty of care in order for the π to have a claim
A. Negligence alone is not enough. i.e. If I see a pen lying on the stairs but don't pick it up, and someone trips and falls because of it later on, I'm probably not liable because I didn't owe any duty to the person who fell.
B.  Duties don't exist in nature. They are determine by the courts on whether or not they ought to  exist
C.     Consider, when determining duty
1.  Foreseeable risks

akes an unreasonable risk, one which a reasonable person would not
2.      Hand formula/risk calculus (B=burden of prevention; P=Probability of loss; L=gravity of loss)
a.  B < P x L (Duty) b.  B ≥ P x L (No duty) c.  In this case, the probability of loss was high (crowded area; windy); the loss potential was high (cargo, life, vessels); and the burden of prevention was low (putting bargee on ship) B.  Bethel v NYC Transit Authority (NY 1998) [higher standards of care] 1.  Do common carriers have a higher standard of care? (extraordinary care) 2.      No. The old rule developed because steam railroads were causing so many injuries. We wanted less litigation (i.e., clear standards), and less injury (incentive to be careful). Those motivators no longer apply, since public transport is just as safe as anything else. In the meantime, we like the "reasonable person" test, because it presupposes a uniform standard of behavior, and that's sufficient. RP is flexible enough. 3.      Constructive Notice a.  "Should have known" theory - person is presumed (or duty bound) to have known about dangerous situation III.          Role of Custom A. Trimarco v Klein (NY 1982) [effect of customs on jury] 1.  π hurt when he fell through shower door. Customary for last 20 years to use safety glass instead of the standard glass used in shower. 2.      Can custom and usage on their own establish a reasonable person standard? a.  No. Custom on its own is not sufficient for a reasonable person standard (per se). The jury still must be convinced.  Custom and usage may be highly influential in the decision, but on their own they are insufficient. b.  "It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence" c.  Hand - "Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure…It never may set its own tests"