Select Page

Temple University School of Law
Anderson, Mark F.

Torts Outline

v Introduction to Tort Liability (Ch. 1)
Ø In General
§ Tort law grants compensation for harm caused to you.
· Damage can be physical, emotional, financial or property.
§ Torts can be intentional or unintentional
· Most tort cases are unintentional. You can allege
¨ Reckless conduct: you know that you are creating a dangerous situation but you do not change your behavior.
¨ Gross negligence: a major failure to conform to expected behavior.
¨ Negligence: failure to use ordinary or reasonable care.
¨ Strict Liability: liability even when have taken the care a reasonable person would use.
Ø Respondeat superior is a form of strict liability holding employers responsible when employees ere. The employer has by definition done nothing wrong. More broadly, this is vicarious liability.
§ Every tort lawsuit must have four elements
· Duty: there must be a preexisting duty of care.
· Breach: given the duty, did you do something wrong?
· Causation: the breach of duty must be shown to cause the damage at suit.
· Damage: the breach must have done damage of the kind the law will recognize and compensate for.
§ When litigants die there are two types of remedies to provide damages.
· Survivor statutes cover damages to the victim until death, including pain and suffering, medical bills and lost wages.
· Wrongful death statutes cover damages for lost support to next of kin. They may also include pain and suffering for the surviving family.
Ø When Should Unintended Injury Result in Liability?
§ Hammontree v. Jenner
· Facts:Jenner was driving home from work when his car crashed through the wall of the shop and struck Maxine, causing injury. Defendant became unconscious during an epileptic seizure and doesn’t remember losing control of car. From 1955 until accident (1967) defendant used Phelantin to control condition and had no seizures. In 1955 the DMV was advised of condition and placed Defendant on probation.
· Holding:Drivers suddenly stricken by illness which they have no reason to anticipate are not subject to negligence, not strict liability.
¨ Hammontree wanted the jury instructed on strict liability, not on negligence.
Ø Their jury instructions did not allow exceptions for first-time health failures. If they had, the court might have accepted them. Courts are not comfortable with large policy changes.
Ø In this case, strict liability had not been applied to car accidents before.
Ø Vicarious Liability
§ Christensen v. Swenson
· Facts: Swenson worked for Burns. Swenson ordered soup, left to pick it up, and on the return trip, her car hit Christensen’s motorcycle at a public intersection.
· Holding: Summary judgment was erroneous because reasonable minds could differ as to whether Swenson was acting within the scope of her employment.
¨ Burns was sued under the doctrine of respondeat superior, which requires that:
Ø Employee must be doing employer’s business, or duties assigned by employer not be wholly involved in a personal endeavor AND
Ø The act must occur wholly within the hours and ordinary spatial boundaries of the employment AND
Ø The conduct must be motivated at least in part by the purpose of serving the employer’s interest.
¨ The trial court granted summary judgment to Burns. This is only appropriate if there is no issue of material fact to be decided. The court can only rule on issues of law.
Ø The reasonable jury test is applied. If no reasonable jury could find, given the facts, that Swenson was acting in the scope of her employment, the court can grant summary judgment.
Ø The court is required to examine the facts in the light most favorable to the non-moving party.
§ Roessler v. Novak
· Facts: Roessler was sent to a hospital. He charges that Dr. Lichtenstein, while acting as an agent of Sarasota Memorial Hospital, misread a scan and was negligent in missing an abdominal abscess which then caused major complications with his surgery. Sarasota Memorial claimed Lichtenstein was an independent contractor.
· Holding: Summary judgment was erroneous because there is a question of fact as to whether or not the doctor is an apparent agent of the hospital.
· Concurring Opinion: Nondelegable duty is a better standard for hospitals because patients may be easily confused by the complicated contract system used in this situation.
¨ SMH was sued for vicarious liability on the basis that it created the appearance that Lichtenstein as an employee even though he was a contractor.
¨ Apparent agency requires:
Ø A representation by the purported principal (hospital) AND;
Ø A reliance on that representation by a third party (plaintiff) AND;
Ø A change in position by the third party in reliance on that representation.
§ The measure of Rule 1 is the hospital’s conduct. It did not place signs. SMH Radiology had no other offices, it was the full-time provider of services. This can be misleading.
§ Rules 2 and 3 are called detrimental reliance. In this case Roessler stayed at the hospital because he thought that the hospital was responsible for its doctors’ actions.
¨ Nondelegable duty would make the hospital accountable no matter the relationship with the doctors.
Ø This would provide a settled rule and lead the hospital to take direct measures to avoid accidents for which it would be liable.
v Breach of Duty – Negligence (Ch. 2)
Ø Historical Development of Fault Liability
§ Brown v. Kendall look in the book.
· This case changed the standard of negligence from extraordinary care to ordinary care.
Ø The Central Concept
§ The Standard of Care
· Adams v. Bullock
¨ Facts: The Defendant runs a trolley line that uses overhead wires. Adams, a twelve-year-old boy, crossed a railroad bridge over the trolley wires while swinging an eight-foot-long wire. The wire contacted the lines which were four feet seven inches below the bridge, shocking and burning Adams.
¨ Holding: Ordinary caution did not involve forethought of this extraordinary accident
Ø You cann

e until Goodman was 18 feet from the track. It was daylight and Goodman was familiar with the crossing.
¨ Holding: Being familiar with the crossing, Goodman should have taken the additional precaution of stopping and looking in addition to slowing his speed and listening for a whistle.

· Pokora v. Wabash Railway Co.
¨ Facts: Pokora was driving his truck across four tracks. A string of boxcars standing on the tracks cut off plaintiff’s view. He could see for 5 feet after the box cars and before the next track but he was sitting about 5 feet back from the front of the car. He stopped and listened but heard no bell or whistle. As he crossed the tracks he was struck by a train.
¨ Holding: It was Pokora’s duty to look along the track from his seat but if his vision was cut off by obstacles, it does not necessarily mean that he was negligent to continue.
Ø The get-out-and-look doctrine in Goodman is not over-ruled, but it is limited in that you must look at the facts of each case to decide if it should be applied. This is a jury question.
· Andrews v. United Airlines, Inc.
¨ Facts: A briefcase fell from an overhead compartment and seriously injured Andrews. She claims that the injury was foreseeable and the airline didn’t prevent it.
¨ Holding: Summary judgment was erroneous because there is a question for a jury as to whether or not United did ‘all that human care, vigilance, and foresight reasonably can do under all circumstances.’
Ø Under the duty of utmost care, the equation of B<PL is altered. Now, as long as the precaution can be made without ruining the company, it must be taken.
Ø Because United can take precautions to prevent falling baggage (baggage nets, for instance) they must be taken.
§ The Role of Custom
· Trimarco v. Klein
¨ Facts: Plaintiff was badly hurt when he fell through the glass door enclosing his bathtub in defendant’s apartment building. The use of shatterproof glass in bathroom enclosures has been standard practice since the 1950s. Since 1965 it has been standard for landlords to replace broken glass with shatterproof glass.
¨ Holding: The plaintiff presented enough evidence of standard practice to sustain the jury verdict in plaintiff’s favor.
Ø Custom may be used to establish liability by showing:
§ The conduct of many,
§ The feasibility of the precaution proposed, and
§ The opportunity for others to learn the custom.