TORTS
DILLBARY
FALL 2011
I. Introduction to Tort Liability
· Tort is the law of externalities
An externality is a situation in which one doesn't internalize (bear) the results of his/her action
Can be positive/negative
· Society = Total Welfare: An action is socially desirable if it benefits one party by more than it injures another; the first party can fully compensate the other and still be better off
· Tort Law: Total welfare
o Reasonable person = person who took cost-justified precaution
· Goal of torts not fairness–>deterrence; We don’t care about current parties, we do about future parties
o Should/what level of precautions should be taken?
o Was the injury to the victim avoidable?
o If so, was victim (P) or injurer (D) in better position to take precautions?
o Will assigning liability to injurer reduce the likelihood that the same type of injuries will re-occur?
· Posner: There is no moral indignation where the cost of prevention would have exceeded the cost of the accident
o Is it efficient?
§ An action is socially desirable if benefits to one party by more than it injures another so the first party can fully compensate the other party and total welfare better off
· Hammontree v. Jenner: P injured when D’s car crashed into their bike shop; D was epileptic
o Court refused instruction on absolute liability
§ Absolute liability = you do it, you pay for it; no matter if you took precaution or not
o Only exists in the books
o In the case of a person struck by sudden illness, their liability rests on negligence
· Negligence:
1. Duty
2. Breach
3. Cause
a. Actual cause
b. Proximate cause
4. Damages
· Strict liability: liability without fault
o Imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The plaintiff need only prove that the tort occurred and that the defendant was responsible.
o Only for –
§ Manufacturers
§ Dangerous animals
§ Dangerous materials
No Liability: you did it and you don’t pay for it
II. Vicarious Liability
· Rule: employer is vicariously liable for torts committed by an employee while acting w/in scope of his/her employment
Vicarious liability = X may be liable for actions of Y, based on their relationship
· Christensen v. Swenson: guard at steel plant went across street to café during break and hit someone on her way back to work
o Employer is vicariously liable when:
§ Employee commits a tort and
1. Conduct of a kind employee is to perform
2. Within the hours and spatial boundaries
3. Motivated by serving employer’s interests
· Schwartz: 3 economic justifications for VL
1. Gives employers incentives to effectively select and supervise employees
2. Employer incentive to discipline the employees
3. Consider alternatives to employee efforts (automate processes, reduce scale of employee's activities)
· Who is best risk avoider? Employee or employer?
o Employer = can see big picture; should be held more accountable
· Rule: Individual who gets into contract with IC is not VL for IC's tort
§ Ind. Contractors v. Hiring employees? employer is hiring a specialist
· Why do we need contracts? Means to allocate risks -> Because I know nothing about that area, I hire an independent contractor in order to allocate the risk to them
· Exception: agency
o Types of agencies:
§ Apparent (implied) = 3 elements
1. A representation by the purported principle
2. P reasonably relied on the representation (Believed putative agent was an employee or agent of the principal) AND
3. P changed position in reliance on the appearance of the agency
§ Explicit = I say someone represents me
· Roessler v. Novak: hospital vicariously liable (VL) for radiologist was an employee of an independent contractor (IC) of the hospital
o They represented that SMH was part of them = apparent agency
Why do we need contracts? Means to allocate risks
Need tort law when there is a market failure (contract law won’t work)
· Why do we need apparent agency?
o Principle represents, plaintiff relies and incurs a cost
§ Incentive to internalize = they won't say they are part of them if they aren’t
o Who is in best position to communicate with P/patient (to say “we're not together”)?
§ The hospital -> the other party would have incentive to lie
· Business justifications for the rule:
o Ads & rep? Patient relies on ads/rep – chooses hospital because it is the best
o Collective action? Cannot negotiate, market power, not specialists
· Quality? By making H internalize cost, incentive to hire
be held answerable for not taking them
· Reasonable Person Standard: Mental Ability
o Should there be an exception for varying faculties of men?
§ No = would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various
· Reasonable Person Standard: Mental Disability
o Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct that doesn’t conform to the reasonable person standard
o Reasons:
1. Difficulty of drawing a line between mental deficiency and variations in temperament/intellect
2. Evidence can be easily faked
3. If mental defectives are to live here, must pay for what they do
4. Those who have charge should look after them
· Reasonable Person Standard: Physical Ability
o Escape liability if actions at the relevant time were wholly beyond his control
§ One cannot accept as exculpation anything less than a total loss of consciousness
· Reasonable Person Standard: Superior Attributes
o In addition to RP standard, must also exercise such “superior” attributes on the listed items as the “actor himself has”
· Reasonable Person Standard: Children
o Blended standard: recognize age and abilities, also should exercise the care that a reasonable child of their actual age, intelligence, and experience would
o Exception: when they engage in adult activities
§ One cannot know whether the operator of an approaching auto, etc. is a minor or an adult and cannot protect themselves against youthful imprudence[SR1]
· Reasonable Person Standard: Emergency Doctrine
o Appropriate for a jury to consider reasonable care to avoid harm to others in light of all the circumstances, including an emergency
§ Thus, general negligence standard encompasses concerns about emergencies
[SR1]Mention name of case (Mastland)
