Torts Outline—Randall Fall 2006
Chapter 1: Intro to Tort Liability
I. When Should Unintended Injury Result in Liability?
a. Shifting losses: The fundamental issue addressed by a system of tort liability foruntended injury is when losses should be shifted from an injury victim to an injuror some other source of compensation. The courts could apply a theory of strict liability by requiring people to pay for all harms they cause. In the alternative, the courts could require that people only pay for injuries they cause through their own negligence or fault.
b. Strict liability or negligence – Hammontree v. Jenner
-The law will only shift the damages from the plaintiff to the defendant if there was negligence.
Strict Liability: As between two actors, neither one at fault, the one who causes accident should be held liable no matter if there is no fault.
(a) When products cause injury, strict liability is an appropriate theory. The manufacturers make a profit from sales and should pay for any injuries. Those costs are costs of doing business.
(b) The theory of negligence, however, is adequate for automobile accidents. Drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, negligence has not been shown.
II. The Parties and Vicarious Liability
(Christensen v. Swenson—security guard in accident when going to lunch)
1. — Nature of Doctrine: The doctrine of vicarious liability provides that in some situations, the tortious act of one person may be imputed to another, because of some special relationship between the two. As a result, the latter will be held liable, even though his own conduct may have been blameless. The most frequent situation in which vicarious liability exists is that involving tortious acts (usually negligent ones) committed by an employee; under appropriate circumstances, the employer is held vicariously liable for the tort.
2. Respondeat superior doctrine: If an employee commits a tort during the “scope of his employment” his employer will (jointly with the employee) be liable. This rule is often described as the doctrine of “respondeat superior” (which means, literally, “Let the person higher up answer.”)
a. Scope of Employment: (Birkner Test)
(1) An employee, not an independent contractor
(2) Acting within the scope of his employment:
(a) Employee’s conduct must be of the ge
care.
3. Apparent Authority
An employer may be liable for torts of non-employees.
An AGENCY exists if three criteria are met: Requirements—ALL must be met
a. A representation by the purported principal (could simply be a
statement “we provide quality medical services”)
b. A reliance on that representation by a third party (plaintiff would testify that the hospital made the representation to her and she relied on it, includes some objective evidence)
c.A change in position by the third party in reliance on the representation (as a result)—“I relied on your statements and I didn’t bring in my own specialist to consult”
Chapter 2: Negligence Principle
These are the elements of cause of action for negligence:
(1)Had a duty of reasonable care
(2)Breached that duty of reasonable care
(3)Caused that breach
(4)Resulted in injury due to that breach
Tort Liability falls into three classes:
Liability based on the intent of the defendant;
