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Temple University School of Law
Anderson, Mark F.

Fall 2015
When should unintended injury result in liability
Hammontree v. Jenner (seizure car crash)
Established that strict liability did not apply to unconscious drivers
Requiring this standard would significantly alter the laws and lead to injustice
Vicarious Liability
Christensen v. Swenson (car wreck, security guard)
Respondeat Superior (let the master answer) – employers are responsible for the actions of employees if the action are within the scope of employment i.e. following test is met:
Employee must be about the employer’s business and the duties assigned by the employer (not WHOLLY involved in personal endeavor)
Employee’s conduct must occur SUBSTANTIALLY within the hours and spatial boundaries of her employment
Employee’s conduct must be motivated at least in part by the purpose of serving the employer’s interest
Usually employer can seek indemnity from employee, but not usually exercised
In cases with Federal employees, indemnity option isn’t there (and plaintiffs can only sue employer directly)
Roessler v. Novak (med mal case, radiologist, apparent authority)
Apparent Agency can be grounds for Respondeat superior, established by:
Representation (by the principal)
Reliance (by the injured party)
Change in position (detriment)
Usually courts don’t worry so much about 2 and 3
Some courts use non-delegable duty rule
Basically, hospitals always liable for negligence of physicians, whether there is apparent agency or not
Also applies in hazardous waste (sometimes)
Four requirements of negligence
Duty – does the person have a “duty” to plaintiff
Breach of duty – what did the party (not) do that they should (not) have done
Causation – breach was legal cause of injury
But-for and proximate
Actual damages
The Standard of Care
Adams v. Bullock
Unavoidable accidents don’t create liability
Cardozo says that if defendant has neither the duty nor the means to take an action, no liability
U.S. v. Carroll Towing Co. (tug boat, no deck hand)
Established Hand Test for negligence (B
>PL (make take precautions unless prohibitively expense or grossly interfere w/ passenger convenience)
Role of Custom
Trimarco v. Klein (glass shower door breaking)
Custom provides evidence of negligence, or lack thereof but it not conclusive of either
Exception is med mal, custom is colorable defense
If no one else does it, maybe standard is too high
If some do it, then it is doable
If everyone does it, ∆ looks bad in front jury, but it’s not conclusive
The Role of Statutes
Martin v. Herzog (car/ buggy wreck no headlights)
Established negligence per se: must prove:
There was a statute
The statute was violated
The statute was created to prevent the type of harm that occurred
Statutes must apply equally to all parties
Tedla v. Ellman (walking down the wrong side of the street, hit by car)
Violation of a statute is not always negligence:
If the law exists to preserve life and limb (and does not set standard of care), and
The violating party had good reason to not observe the law (in this case, more traffic coming the other way), then
The violation of the statute is not necessarily negligence
If custom and statute conflict, f

ff of truck)
Res Ipsa only applies in very rare cases, RST 2nd of torts says some applications are better than others:
Objects falling from ∆’s premises
Fall of an elevator
Escape of gas or water from mains or electricity from wires
Derailment of trains
Explosion of boilers
Not required to eliminate all other possible causes, just that it is more likely than not that there was negligence
Ybarra v. Spangard (plaintiff injured during sx)
Purpose of res ipsa is to move the burden from π to ∆ when π has exclusive access to the knowledge of what happened
This isn’t a general rule though, should not necessarily be used as precedent
Physical Injuries
Affirmative Obligations to Act
Harper v. Herman (young guy dove off boat, not warned)
Duty to act only exists when the parties have a special relationship
Harper should have been careful around fire and water
Misfeasance v. Nonfeasance
Misfeasance liability – if acting, duty to act reasonably w/o special relationship
Nonfeasance liability – affirmative duty to act only w/ a special relationship:
Common Carriers
People under your control
Arguments for Good Sam v. Bad Sam Law
When not acting is shocking
Break/ defeat bystander effect
Help those in need (morality = legality)
Is B