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Temple University School of Law
Anderson, Mark F.

When should unintended injury result in liability?
· need to determine when losses should be shifted from victim to injurer
◦ Hammontree v. Jenner
▪ D had seizure, veered off rd., injuring P and damaging shop
· Standard for drivers should be negligence since roads are shared and damages should be allocated based on fault
· strict liability standard would be unfair and have to be decided on a case by case basis, had P argued that they wanted absolute standard, but judge thinks that as P wants it, it would be unfair, may have been different if instead they had insisted absolute standard except for those who have no history of illness
◦ Similar Cases
· Waschek v. State CA (DMV can be sued for N if driver was unqaulified and still received license based on mandatory duties, but are immune for discretionary duties)
Vicarious Liability
◦ Christensen v. Swenson (UT)
▪ Security guard trying to get back and forth to lunch quickly. Got in accident. Victim sued saying that guard was in scope of employment
· Respondeat superior(an employer is liable for an employee’s torts committed whent he employee is acting within the scope of employment)
· Birkner Test for factors which are within scope of employment
◦ employee’s conduct must be general kind employee was hired for, not personal
◦ conduct must occur substantially wihtin hours and ordinary spatial boundaries of employment
◦ conduct must be partially motivated by purpose of serving employer
· use this theory because companies can compensate more for harm, deters bad employment decisions, fair because company can pass on cost of business to consumer
Similar Case Rules
▪ RST employee acts within scope of job when performing work assigned by emp. or engaging in course of conduct subject to emp’s control. Not within scope when it occurs in independent course of conduct not intended by employee to serve any purpose of employer
▪ IN. Warner Trucking v. Carolina Cas. master may be liable for actions of driver who violated co. policy against d & d
▪ UT Clark v. Pagan says intentional harm can be within scope of employment unlike most states (i.e. fight over business decisions)
▪ OK. Baker v. St. Francis D facility responsible for emp. banging baby head to make it stop crying since within scope of emp.
▪ Mass. Foster v. The Loft court concluded that jury could reasonably find that an owner failed to take reasonable steps to screen employees who would be dealing with the public in volatile atmosphere with high potential for violence
◦ Roessler v. Novak FL
▪ P went to er at hospital (D) where he was evaluated and admitted, then suffered complications. D contends dr. was independent agent, but P says dr. was an agent of D
· while some agencies are based on an express agreement, a principal may be liable for acts within an agent’s apparent authority (3 part test)
◦ rep. by purported principal-(hospital) radiologist was never held out as being independent, had no toher offices
◦ reliance on rep. by a 3rd party
◦ change in position by the 3rd party due to rep
· often question of fact for jury to decide whether apparent agency exists or not
▪ concurrence talks about non-delegable duty of all activities within hospital in order to make torts a more predictable system
◦ Similar Cases
▪ TX Baptist H v. Sampson (use of signs by hospital shows that nothing hospital had done could have created reasonable belief that the physicians were hospital agents)
▪ RST section 429 says one who employs an independent contractor to perform services for another which are accepted in reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants
▪ Becker v. Poling (Fed. circuit) purchaser of oil in old boat was found v.l. for neg. of transporter based on the peculiar risk exception which make employers of independent contractors v.l. for work that involves a peculiar risk if the contractor fails to take appropriate precautions in light of the risk
Standard of Care
◦ Adams v. Bullock (NY)
▪ D operated trolley w/ overhead wires. At 1 pt. wires crossed near bridge. P was 12 yr. old boy using bridge as shortcut. While P walked he was swinging an 8 ft. wire over his head which then contacted D’s wire, electrocuting him.
· d is bound to use that care that is commensurate with the hazard involved. The risk, reasonably defined determines the duty owed. Thus it is hard to establish a duty where an accident had never happened before.
▪ Braun suggests that D should have foreseeability in assessing risks, especially when stringing wires near vacant lot in urban area
▪ Greene v. Sibley, Lindsay & Curr Co.
· kneeling mechanic was allowed to assume that woman saw him kneel down, and thus the verdict for P was overturned. Is someone supposed to assume that a person standing next to them does not see them?
◦ U.S. v. Carroll Towing Co. (Fed) IMPROVE THIS
▪ P’s towing barge broke free from moorings and sank allegedly because of d’s negligence. Employee in charge of P’s vehicle was on shore during accident, which was in the middle of war so port was constant of activity. T

se those who look after them to be more careful
· superior attributes
◦ must exercise the attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as would a reasonable person, and must also exercise such superior attributes on the listed items as actor has
· Children
◦ Mastland, Inc. v. Evans Furniture Inc. IA
▪ what was the capacity of a particular child and then objectively how would a reasonable child of similar capacity have acted under similar circumstances? Child in question is negligent only if their actions fall short of the above standard
◦ Ellis v. D’Angelo
▪ it is proper to hold that a 4 year old has not developed the mental capacity for foreseeing the possibilities of their inadverdent conduct which would rationally support a finding that they were negligent
◦ few states hold child below 6/7 are conclusively presumed unable to comprehend risk sufficiently to be held negligent. These states also use a rebuttable conclusion for children 7-14.
◦ Dellwo v. Pearson
▪ When children engage in adult activities, courts have applied adult standards
◦ Emergency Doctrine
▪ a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence
▪ increasing number of states are unwilling to give this instruction
Roles of Judge and Jury
◦ B & O RR co. v. Goodman SCOTUS
▪ Goodman got hit by train while driving across rr. Court determined that his own negligence was proximate cause of death. It is true that the question of due care very generally is left to the jury, but we are dealing with a standard of conduct, and when the standard is clear, it should be laid down once and for all by the Courts.
· Holmes believed that when small cases of similar fact positions occur time after time, a judge should have enough experience to lay down a rule, as opposed to leaving it to an individual jury.
◦ Pokora v. Wabash Railway SCOTUS
P was hurt while crossing rr, and stopped as directed by Goodman court