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Temple University School of Law
Rogers, Brishen

Fall 2015 – TORT OUTLINE – Rogers
•      Torts – A (common law) civil wrong not arising out of contract.
Crim Law v Tort Law
•Purposes: punishment (criminal) versus compensation (tort).
•Public law and public interests (criminal) vs. private law and private interests (tort).
•Different actors:
–In criminal law the State charges the D.
–In tort law, either the state or a private party can be either a P or a D.
•Different procedural requirements and protections. Different burden of proof.
Contract v Tort Law
nNo pre-existing relationship between parties is necessary in tort
nTort generally about harm to property and person – not economic loss per se.
nBut the difference is often blurry.
•      Holmes (fairness) – fairness, anti-SL
•      If loss doesn’t lie where it falls, humans can always be held liable for one act or the other as we are instruments of misfortune
•      D shouldn’t be liable for unforeseen harm. Plus acts are desirable so no good to ban act.
•      Don’t want to turn state into mutual insurance company
•      Posner (utility) – efficiency, cost-justified
•      Everything viewed via cost-justified notion. Optimal level of accidents and safety
•      Resources mustn’t be squandered so under this view neg shows moral disapproval cos it shows there was a cheaper alternative
•      Rule – draws bright line & affords little discretion ie driving over 65 miles/hr is prohibited
•      Standard – reflects overarching norm & gives less concrete guidance ie law prohibiting driving at unsafe speed
A.    Negligence Liability: – if accident law is neither product liability nor strict liability, then negligence liability applies.
Questions to Consider
1.      Did the defendant take adequate precautions to prevent this injury?
2.      Did the defendant’s actions cause the harm to the plaintiff?
3.      Did the plaintiff fail to protect him- or her-self from injury?
–          Hammontree v. Jenner: Jenner crashed car into P’s bicycle shop, causing physical injury to P and shop, due to epilepsy, while medicated. Not negligent b/c illness was unforeseen.
RULE: Liability of a driver 4 injury resulting from an accident occurring during sudden illness that renders him unconscious rests on principles of negligence.
B.     Strict liability: – D is liable regardless of precautions, so long as D “caused” Ps injuries.
o   Cases generally involve “abnormally dangerous” activities – use of dynamite, handling radioactive material.
o   Respondeat superior (liability of employers for their employees’ torts) and some forms of products liability are also forms of strict liability.
Doctrine of Respondeat Superior / Vicarious Liability cases
–          Respondear Superior – Let the Superior Answer
–          Employer can be liable in his own right for negligently hiring/supervising employee. (not vicarious liability)
–          Respondeat superior – employers are vicariously liable, absent own negligence, for torts committed by employees within the scope of of employment.
–          This is chiefly cause he’s acting to further employer’s goals (e&e)
–          Employers liable for torts on detour but not on frolic
–          Intentional torts are usually not within scope of employment (with some exceptions / lexis)
–          Principals aren’t vicariously liable for tortious acts of independent contractors (with exceptions / lexis)
–          Trend is to include incidental acts like lunch break, misguidedly applying force to seve employer’s interest, as scope of employment(e&e)
–          Clearly private personal torts during employment hours don’t count
–          Sexual misconduct isn’t covered by respondeat superior (but how abt in cases were authority of job gives power over others eg judge or police?)
Christensen v. Swenson:
Employee gets into accident just outside place of employment during 15 minutes break during employment hours.
Birkner test.
(Employee’s acts are in scope of employment where they are “so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment”)
§  employee must be going about employer’s business as opposed 2 wholly involved in personal endeavor.
§  Must occur within hours and spatial boundaries of employment.
§  her conduct must be motivated, at least in part, by purpose of serving employer’s interest
RULE: employers are vicariously liable when employees are acting within hours & scope of employment
Ira S. Bushey & Sons v. United States:
seaman returning 4rm shore leave turns a couple of cranks on drydock, thus damaging it cos he was drunk. Employer shoulda foreseen that drunk seamen returning from leave can damage something on dry dock. If man had killed wife’s lover on drydock, then it is personal.
RULE:  a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.
Policy basis of respondeat superior
§  deterrence (prevent future injuries)
§  loss-spreading function – (deep pockets / liability insurance / ee)
o   Go over vicarious liability hypos in class note
C.     Alternatives to Tort: Workers Comp & other No-Fault Compensation Schemes-
An alternative to tort. Guarantees P limited compensation but denies him right to sue in tort.
Workers Comp – Employers must provide employees who suffer work-related injuries or disease w/medical & income benefits regardless of fault for injury.  Employees, in turn, must treat workers comp as exclusive remedy & give up common law tort claims.
o   Ensures employers don’t g

–          Negligence – D fails to take reasonable care against foreseeable risks
–          Transferred intent – allows tort to be shifted from intentional tort D tried to commit to tort D actually committed. It is fair and just
–          Garratt v. Dailey:
Did child have knowledge that his actions would cause P harm?  Even if Brian’s actions were not intended to injure or embarrass P, but he had knowledge that she was in the process of sitting down, intent is established.
RULE: intent is established if d knows with a substantial certainty (habitus/ knowledge gotten from living in d world 4 long time. More than 51% but not up to 100. Very very likely) that p wld be harmed by his action.
Extent of Liability
                                                              i.      Vosburg v. Putney: D reached foot across the aisle in classroom & touched P’s leg, aggravating existing injury.  The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. => eggshell skull rule (rule for DAMAGES!): D takes victim as he finds them – liable for all resulting harm, even if due to pre-existing condition.
B.)   Assault
                                                            ii.      RST 21: An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact w/ the person, or an imminent apprehension of such contact with P or a third party AND (b) the other is thereby put in such imminent apprehension
1.      Apprehension must be the type of fear normally aroused in the mind of a reasonable person
2.      Fear is not required, just “apprehension/anticipation of imminent harmful or offensive conduct.
3.      Threat must be immediate, close, & actual (not conditional)
4.      Threatened harm must be close in space (over the phone threats don’t count)
5.      Extra-sensitive P: no liability unless D knows about hypersensitivity, he’d be subject to liability 4 assault although ‘his act wont have put a person of ordinary courage in such apprehension. (RST 27)
6.      Fearing harm to third party doesn’t count
7.      Picard v. Barry Pontiac-Buick: mechanic shouted at P & lunged at her.  Offensive contact w/camera constituted assault & battery.