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Temple University School of Law
Anderson, Mark F.

Torts – Anderson – Fall 2012
Ø  Strict Liability vs. Negligence
–      For SL, implied duty, but must show cause, breach, damages
Hammontree v. Jenner
–         Epileptic lost control of car, drove into bike shop, didn’t have symptoms many years. Not liable because reasonable person wouldn’t expect epilepsy to return.
–         Not strict liability. Too much of a burden.
Ø  Respondeat superior – “let the master answer”
–       Employer vicariously liable if employee is acting in the scope of employment:
–         Birkner criteria
–         Conduct must be of the type the employee was hired to do
–         Must be during reasonable business hours and spatial boundaries of business
–         Must be at least partially motivated by serving the employer’s interest
–       Employer strictly liable only if employee was negligent
–       Employers have to take reasonable steps to prevent tort.
–         Ex. Hiring a bar tender who was once guilty of battery and assault and then have that bartender hit a patron
Christensen v. Swenson
–         Employee of independent contractor hit 3rd party. Must determine if employee was acting within scope of employmentàmust show Birkner criteria
Ø  Apparent authority/agency
–       Authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing
–       Principal may be held liable if its agent's actions are within the scope of the agency
–        May be liable for acts of agent which are within agent's APPARENT authority
–        Doesn’t necessarily have to have an expressed agreement
–       Principal must be estopped to deny authority when third party relies on that authority
–       Apparent agency exists if there is:
–          Representation by purported principal
–          Reliance on that representation by third party
–         Change in position by third party in reliance on representation
–         NOT from subjective understanding
Roessler v. Novak
–         Dr misinterpreted diagnosis, caused health problems for patient. Dr is independent contractor. Must show 3 elements (above)
·         Opinion – Non-delagable duty (some states):
§  Can't get rid of this duty
§  Hospitals always responsible for all services provided (in some states)
§  “enterprise liability”
Ø  Captain of the Ship Doctrine
–       If you're in charge of a group of people, and one of them does something wrong, you can be held liable for them
Ø  Related Laws
–       No fault insurance – rely on your own insurance for compensation. No 3rd party involved (rare)
–       No fault liability (strict liability) – 3rd party liability
–       In PA, full tort – recover full damages from 3rd party
–       Limited tort – can't sue 3rd party for pain and suffering. 1st party insurance doesn't cover non-physical injury except if serious injury
–       Survival act – recover personal damages until death of D
–       Wrongful death act – loss goes to survivors.
–       Economic – money others (supported parties) relied on
–       Non-economic – loss of consortium (not in all states)
Ø  Standard of Care (reasonable person)
–      What would an ordinary reasonable prudent person do in a similar situation?
–      Must show duty, breach, causation, damages
–      Assessment of risk analysis (Hand formula)
–       If probability * magnitude of loss is greater than the burden of precautions (cost of prevention), then liable
–       B
–         L=gravity of resulting damage
–         B=burden of adequate precautions
Adams v. Bullock
–         Kid swung wire from bridge above trolley line, got electrocuted. Not negligence because not foreseeable. Used ordinary standard of care. Can’t use extraordinary standard of care because no special danger/circumstances or foreseeability.
U.S. v. Carroll
–         Lines on a tugboat were negligently adjusted, lost value of ship and cargo. Negligent because bargee should have been on the boat. Used Hand formula
Chicago, Burlington & Quincy Railroad Co. v. Krayenbuhl
–         Kids played on unlocked RR turntable, one lost leg. Benefit of turntable outweights rare injury (societal benefit), but benefit of a cheap lock outweighs the burden of buying/locking. Must have a lock.
McCarty v. Pheasant Run, Inc
–         Guest assaulted in resort room, door unlocked, security chain was fastened. Subjective assignment of P, L, B.
Wood v. Groh
–         D’s son shot P with D’s gun, used screwdriver to break case. Parents owe the highest duty for dangerous weapons.
–      Special clarifications
–       Mental disability – No excuse for lower intelligence. No individual analysis of mental ability. (Vaughn v. Menlove)
–       Physical disability – Special allowances. Must behave as a reasonable person with those disabilities would.
–       Kids – Individual assessment. Blended standard for age and ability. How a reasonable person of that age and ability would act.
–       Emergency doctrine – different standard during emergency (rare). Usually look at how a reasonable person would act during that particular emergency.
Ø  Contributory negligence
–      Due care is for jury to establish unless the standard is clear
Baltimore & Ohio Railroad Co. v. Goodman
–         D killed by train while crossing RR. View was obstructed, didn’t stop, look, listen for trains.
–         D contributorily negligent because he didn’t stop and look when he could have because there was room between obstruction and tracks to stop and check.
Pokora v. Wabash Railway Co.
–         P killed while crossing 4 tracks, had obstructed view, no room between obstruction and tracks to stop and checkàNegligence depends on circumstances. If you can’t check for train, but there’s an opportunity to check, you must check.
Ø  Common carriers
–      Common carriers held to extraordinary standard of care
–         Ordinary liability
–         Common carrier liability
–         Negligence standard
–         Ordinary care required
–         Must exercise vigilance of an ordinarily cautions person
–         Must take precautions reasonable in light of cost to risk
–         Liable unless B>PL formula
–         Slight negligence (still not strict)
–         Extraordinary care required
–         Must exercise vigilance of a very cautions person
–         Must take all precautions unless they're prohibitively expensive or grossly unfair wrt convenience
–         Liable unless B>>PL (still not strict b/c not insurer)
Ø  Customs
–      Customs don’t necessarily require standard of care
Trimarco v. Klein
–         P (tenant) badly cut when he fell through glass door. Customary for landlords to replace old glass with new tempered glass.
–         No common-law duty on D to replace glass unless there was prior notice of danger either from P or by reason of similar accident
LaValle v. Vermont Motor Inns, Inc.
–         During blackout, P fell and was injured, claimed motel was negligent because it knew of possibility from prior blackouts and could prevent with cheap backup lights.
–         Although power failures occurred before, no guest was injured because of them. Other motels don’t have backup lights either.
Garthe v. Ruppert
–         P slipped on wet floor in brewery, showed that, although all had wet floors, one brewery had technique to keep floors dry.
–         One or two instances can’t be used to gauge or guide in place of custom or trade.
–      Customs NOT an excuse to violate the law
Robinson v. D.C.
–         P hit by police van while jaywalking. Argued that it was customary to jaywalk there.
–         P held contributorily negligent because customs are not a basis for violating the law even if it’s common practice.
Ø  Negligence per se
–      When a statute is violated, there is negligence per se
–      Jury can’t relax statutes
–      Only when violation is what the statute is meant for
–       Ex. If you don’t have headlights in car, the statute is to help others see you. If it’s bright out and there’s no need for lights, not negligence per se.
Martin v. Herzog
–         P killed in collision between his buggy and D’s car. P driving at night

–         No liability. Individuals were in charge and in control of the car.
Mixon v. Dobbs Houses, Inc.
–         Manager of restaurant promised to inform employee if his wife called and was in labor. Didn’t do this, even though he got her calls.
–         Liable. There was a special relationship established by their agreement to do this
Tarasoff v. Reagents of University of California
–         Poddar went to 4 psychiatrists, confided in them his intentions to kill Tarasoff. One doctor warned police about it. Nobody notified victims.
–         D owes a duty of care to all persons who are foreseeably endangered. When it’s foreseeable, D has control of another, and there’s a special relationship, D is liable. Should have notified Tarasoff of direct threat.
–      Factors to consider from Tarasoff:
–         Foreseeability (most important)
–         Degree of certainty
–         Closeness of connection between conduct and harm
–         Moral blame of conduct
–         Policy of preventing future harm
–         Burden on D
–         Consequences on community
–      Now a statute for immunity from liability except when a patient communicated a serious threat of physical violence against a reasonably identifiable victim. Can’t be a general threat, must be against specific target. Only when explicitly communicated. No “should have known” theory
–      No liability for failing to warn for self-inflicted harm or property damage
–      No general duty to inform sexual partners of HIV-positive patient
Reisner v. Regents of UC
–         Imposed duty to notify of HIV-positive blood, even though no relationship between physician and P
–      Legislative – Private Right of Action
–       Whether P is one of the class for whose particular benefit the statute was enacted
–       Whether recognition of a private right of action would promote the legislative purpose
–       Whether creation of such a right would be consistent with the legislative scheme
Uhr v. East Greenbush Central School District
–         Statute requires schools to test for scoliosis annually. P didn’t get tested, required surgeryàdoesn’t satisfy 3rd prong (above)
–      Privity/Crushing liability
–       When there’s no privity,  D can’t be held liable unless it breaches a duty owed to P
Strauss v. Belle Realty Co.
–         During blackout, P had no water, went to basement for water, fell in darkness on defective stairs. Sued electric company. No privity between P and electric company.
–         No liability because no contract between P and D, so no duty. Would expand liability unduly. Crushing liability
–         DISSENT: company won’t be crushed, ignores the burdens placed on injured parties
Ø  Duty to a Third Party
–      Social hosts
–       Not reasonable to expect social hosts to monitor every guest’s consumption.
–       No liability for injuries to third persons from an intoxicated second person.
Reynolds v. Hicks
–         Minor drank at wedding, drove, crashed into P. P sued social hosts for supplying alcohol to minoràno duty. Not strict liability
–      For commercial vendoràduty to 3rd parties for drunk 2nd parties
–      Dram shop acts vary by state. Majority allow recovery if D knew or should have known the customer was intoxicated. Degrees of what is reasonable vary.