Alan Durham, Torts Outline, Fall 2013
INTRODUCTION TO TORT LIABILITY
Was there a tort?
I. Hammontree v. Jenner
a. Fact Pattern:
i. Jenner stricken with epileptic seizure, becomes unconscious, car runs into Hammmontree’s bike shop, caused injuries to Mrs. Hammontree and damage to shop
b. Reasoning/Holding:
i. When a driver is suddenly stricken unconscious by an illness or injury while driving, principles of negligence apply
c. Standard to be applied is that of negligence – not strict or absolute liability
VICARIOUS LIABILITY
I. Vicarious liability is just a way of shifting costs – still have to prove that someone was negligent
II. Respondeat Superior and Apparent Authority are most common types
III. Employers are vicariously liable for torts committed by employees while acting within the scope of their employment
IV. Employees v. independent contractors:
a. Employee is subject to the close control of the employer, while an independent contractor is hired to produce a certain result, but is not under close control
b. To be an employee, the employer must have control over the physical details of the work and not just the general manner in which it is turned out
c. Example – newspaper boy is likely an independent contractor, because the newspaper only controls the general terms of the employment, but not physical details, such as whether the boy delivers by car or bike
Respondeat Superior
V. Think about this when someone is doing something during the course of his job
VI. This does not apply to independent contractors!!
a. Test – if A would be viewed in the eyes of the community as a member of the regular working staff of B, then this applies
VII. Two part test for RS:
a. D2 must be employer of D2, which means that D2 must have the right to control the details of D1’s performance
b. D1 must be acting within the scope of the employment at the time he committed the act in question
VIII. 3 Criteria for Acting Within Scope of Employment:
a. Ask yourself if the employee was acting to further the employer’s business purposes
b. Three criteria:
i. Conduct must be of general kind employee is hired to perform
ii. Conduct must occur substantially within hours and ordinary spatial boundaries of employment
iii. Conduct must be motivated by purpose of serving employer’s interest
IX. Christensen v. Swenson
a. Fact Pattern:
i. Security guard, permitted to take 10-15 minute unscheduled breaks, placed order for lunch, drove across street to pick up, on way back collided with P’s motorcycle
b. Reasoning/Holding:
i. Reasonable minds could differ as to whether or not she was within scope of her employment when had accident. Traditionally, courts hold that things that happen during the commute to/from work are not covered by vicarious liability
Apparent Authority
X. Authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing
XI. Elements of Apparent Authority:
a. Representation by purported principal
b. Reliance on that representation by third party
c. Change in position by the third party in reliance on the representation
XII. Roessler v. Novak
a. Fact Pattern:
i. P diagnosed at walk-in clinic with potentially life-threatening disease, evaluated by surgeon, complications after surgery caused 2.5 months extra hospitalization, P alleges doctor misinterpreted scans while agent of hospital
b. Reasoning/Holding:
i. A hospital may be held vicariously liable for the acts of physicians if they act within the apparent authority of the hospital. This is determined by jury.
NEGLIGENCE
I. Elements of cause of action for negligence:
a. Duty – Must show that D owed you some duty to act a certain way
b. Standard of Care – Question and rule of law that must be applied
c. Breach – P must show breach of whatever duty D had
d. Cause-in-Fact – Breach was the but-for cause of your injury
e. Proximate Cause – Type of harm was foreseeable
f. Injury – Must show that there was some injury
g. Defenses – Things that the D will have to prove
THE REASONABLE PERSON STANDARD
I. This is the standard of care that is normally applied – what would the reasonable person have done under the circumstances?
II. Illustrates importance of foreseeability
III. Exceptions:
I. Standard under common law is that we do not take into account mental infirmities – still held to standard of care of a reasonable person
II. Manifest insanity may be taken into account in some states
III. Intoxication is very unlikely to be taken into account
IV. There is an exception with physical infirmities
V. If you have extra abilities, you are expected to perform to your higher abilities
IV. Standard of care for children:
I. More individualized
II. Reasonable person of child’s age, intelligence, and experience
III. Very young children can be incapable of being negligent
a. In AL, under 7 is incapable of being negligent
b. 7-14 depends on circumstances and what child understands
c. Over 14, always capable of being negligent
IV. Parents can be charged with negligent supervision depending on the child and what he has done before
V. Children are held to an adult standard of care with they are engaged in adult activities
V. US v. Carroll Towing
a. Fact Pattern:
i. Carroll (a tug) readjusted lines holding Anna C, didn’t secure it well and it broke loose, rammed into tanker, tanker’s propeller broke hole in Anna C, Anna C sank losing cargo and ship, Carroll wants to reduce damages because bargee was absent from Anna C, had he been there he could have sounded warning and saved barge
b. Reasoning/Holding:
i. There was negligence here. Bargee can go ashore at times, but he had been gone for 21 hours here, which was negligent
nsible for even the slightest negligence and is required to do all that human care, vigilance, and foresight reasonably can do under the circumstances, but it is not an insurer of passenger’s safety
iii. Working off the duty of “utmost care” here because this is in CA
THE ROLES OF CUSTOM AND STATUTES
I. Role of statutes:
a. Can directly dictate standard of care – more rare now
b. Statute usually has enforcement scheme that runs parallel to tort law
c. Guest statute – driver only liable to passenger if they engaged in willful misconduct
d. Reason for statute must be related to injury that occurred in order to say negligent
i. For example, lights are required on cars to prevent accidents, so if you have no lights and an accident, this is the reason the statute was there
e. Clearest excuse for violating statute is when compliance is physically impossible
II. 3 Ways to Use Relevant Violation in Different Jurisdictions:
a. Can be used as evidence of negligence that jury can disregard if they want
b. Violation can serve as prima facie evidence – puts burden on party who violated statute
c. Violation as negligence per se – evidence does not establish negligence as cannot be rebutted
i. Only thing to do is argue that statute was never intended to avoid that type of injury or that statute would not have prevented injury anyway
III. Prima Facie – means the first side of the case
a. You bear the burden of proof is there is no rebuttal from the other side
IV. Trimarco v. Klein
a. Fact Pattern:
i. P thought shower door in apartment was tempered glass, but was ordinary thin glass, fell through door, was badly cut, when accident occurred door no longer conformed to safety standards
b. Reasoning/Holding:
i. Jury needs to decide this case
ii. When proof of an accepted practice is accompanied by evidence that the D conformed to it, this may establish due care
iii. When proof of a customary practice is coupled with showing that is was ignored and departure was proximate cause of accident, may serve to establish liability
iv. Customary practice must be well-defined and in the same business so that the actor charged with negligence should have been aware of it
v. Custom is part of what the best business practice is at the time – if everyone does something the same way, there is a reasonable belief that this must be a good way to do it
