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Temple University School of Law
Anderson, Mark F.

a. Elements of a Tort – must be established in torts case (need damages AND someone to pay)
duty + breach + causation + injury = prima facie case for negligence
i. Duty
ii. Breach
iii. Causation
iv. Damages
b. Questions to answer –
Judge decides whether duty exists (? of law); jury decides the rest (question of fact)
i. Facts (surrounding circumstances) —————————————— decided by jury
ii. Application of law to fact —————————————————— decided by jury
iii. Law (e.g., def’n negligence? Instructions to jury, directed verdict)– decided by judge
c. Purpose:
Give victim the right to sue when someone causes them harm (psychological, physical or economic) even though there was no pre-existing duty (like may be established in a contract for example) between the parties
d. Torts are NOT…
Not a criminal prosecution (also a crime, sometimes)
Ex. OJ Simpson- acquitted of murder, but found responsible in civil case
Not a breach of contract (no contractual relationship generally between those involved in a torts case)
Ex. Malpractice is not a breach of contract between patient and his doctor, but negligence on the part of the Doc
e. Why have Torts? (last two are also purposes of criminal law)
Goal: Return you to the position you were in before injury took place (as if it had never happened)
They are driven by compensation! They fill some of the gaps of our system which leave many Americans at risk of suffering sizable uninsured medical expenses and income loss as a result of illness or injury. The tort system does this by compensating many persons who would not otherwise receive reimbursement for the medical expenses and wage losses occasioned by an illness or injury.
i. Compensation – Rightful damage burden – compensation for the injured party

If appropriate to put burden on injurer, then you have a cause of action

Fill in holes left by our system which does not provide reimbursement for medical expenses and wage losses occasioned by an illness or injury

ii. Justice/Fairness – more civilized (non-violent) than revenge, deal fairly between parties; demonstration of wrongful conduct.
iii. Deterrence
iv. Punishment (punitive – need to punish as a result of disapproval for an action)
f. Types of Torts:
i. Unintentional torts : harm caused by those not intending to cause harm
1. Focus of this class, more common type of torts
2. Categories:
a. Reckless (what you knew and did anyway)
(reckless driver does not intend to cause harm, but acts in conscious disregard of the level of risk he is creating)
Eligible for punitive damages
b. Gross negligence (something more than standard negligence)
(in between reckless and negligent)
Sometimes eligible for punitive damages
c. Negligence (what you should have known)
(not doing what you should do)
Not eligible for punitive damages
d. Strict liability (liability without fault, collapses breach & causation)
(doing what you should do)
Not eligible for punitive damages
ii. Intentional torts: causing harm on purpose (done purposefully, e.g., slander, threat)
1. More similar generally to crimes (due to intent)
2. More likely to get punitive damages
g. Defenses –
i. Plaintiff did it
ii. Other defendants did it (too)
h. Types of tests:
i. More they comply –> stronger case (and vice versa), more like guidelines (sufficient?)
ii. Mandatory Test – all factors must be satisfied (necessary?)
i. Definitions:
i. Prima facie case for torts– plaintiff must prove ACT + INTENT + CAUSATION
ii. Specific intent – goal is to bring about specific consequences
iii. General intent – knows with substantial certainty that consequences will result
j. Litigation Process:
i. Trial Court Pre-trial Procedure- aggrieved party must initiate the claim and pursue it until she gains redress or exhausts the available legal remedies.
1. Consult and retain an attorney
2. Attempt to obtain a settlement
3. File a complaint stating what occurred and relief sought including the facts as described by the defendant, the legal theory under which the plaintiff is proceeding
4. Determination of whether a jury is required
a. Law questions à court
b. Factual disputes à jury
5. Jury selection
6. Attorney retained by defendant at some point, who will consider options, make motions
7. Motion to dismiss the complaint/demurrer = grounds that even if the allegations of fact are true in the complaint, there is no sound legal theory upon which plaintiff is entitled to relief
a. Response by plaintiff
b. Review by judge
i. Rules in favor of the defendant? Case dismissed
ii. Rules in favor of the plaintiff? (denies defendant’s motion)
II. Defendant may appeal in some states immediately
III. Otherwise, defendant must wait until trial is completed
8. Defendant may meet the plaintiff’s fact allegations by a pleading called an “answer” in which the defendant denies some or all of the plaintiff’s allegations of fact and perhaps adds some of his own facts, only possible if one of the parties has conclusive evidence that it is telling the truth (“apparent dispute” not a “genuine dispute”
9. Motion for summary judgment – plaintiff’s facts cannot possibly be proved to be true so a trial would be unnecessary
10. Motion for a “directed verdict” or “judgment as a matter of law” – asks judge to rule that the plaintiff’s evidence is so lacking on at least one essential fact that no jury could reasonably find in the plaintiff’s favor and thus it is pointless to continue the trial.
ii. At the trial, the burden of proof is on the plaintiff
1. Int

e could have a seizure while on meds without warning, DMV required check-up; people with epilepsy should not drive
b. No, negligence standard: DMV says it is okay to drive (DMV represents society’s views, so not negligent), Doc said it was okay to drive, no seizure for 12 years, no seizure while on this medication.
iv. Vicarious Liability
1. Respondeat Superior: definitely an employer-employee relationship… determine if employee was within the scope of his employment…
a. Christensen v. Swenson
i. Facts: Independent security firm employed D as an employee to work at a Steel plant. Employees work 8-hr shifts, no scheduled breaks, allowed short bathroom/lunch breaks, occasionally get lunch from café (menu posted at Gate 4) that is only 150-250 yards away, only other food option is vending machine, guards expected to eat at posts. D noticed lull in traffic, ordered food in advance to save time, intended to return within 10-15 min time for breaks, hit P’s motorcycle while returning.
ii. Holding: Because under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees within the scope of their employment, and there is a question of material fact to whether D was within scope of employment (according to the Birkner Criterion), so the lower courts erred by granting motion for summary judgment.
II. Standard for summary judgment = must be CLEARLY within scope of employment
iii. Birkner Criterion (mandatory test to determine whether an employee is within scope of employment when tort occurred0
II. Conduct of Employee must be of the general kind the employee is hired to perform
– e.g. if law firm associated is asked to drive for pizza for an office party, since employer asked him to do it can satisfy this requirement
III. Employee’s conduct must be substantially within the 1) hours of employment AND 2) spatial boundaries of employment
– E.g., getting lunch might qualify – can be extended beyond typical hours/boundaries
IV. Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
– E.g., punching someone at gate à liability because the conduct was in the interest of the employer (Deter criminal)
– E.g., punching lunch lade NOT à liability because that does not serve the interest of the employer