Torts Outline

Torts
2017
Dillbary
 
 
 
Introduction to Torts:
Tort =     someone suffers harm on account of the actions of another. Legal principles aiming to regulate harmful behavior and assign responsibility.
Tort law is the law of negative externalities. (externality is a situation in which one does not bear the results of their own action)
An action is socially desirable if the benefits are more than the costs (the wronging party must be able to fully compensate the wronged)
Torts are a social mechanism of incentives. Society uses torts to incentivize socially desirable behavior and nudge individuals in the direction of adhering to it.
Questions: Was the accident avoidable? What precautions could have been taken? Who is in better position to take precautions? Can it be avoided by holding the defendant liable? What will it cost and is it worth the cost to avoid the accident.
Question in torts is not who can sue but who can recover
Spectrum of Liability:
 
Neg (cc)
Neg (rp)
NL
AL
SL
 
 
 
 
 
 
NL = no liability = no responsibility for accident
Neg =      negligence = what would the prudent reasonable person do under the circumstances (Duty, Breach, Causation, Damages)
Neg rp = reasonable person standard
Neg cc = negligence of common carrier, higher standard of utmost care
SL = strict liability = causation regardless of fault
AL = absolute liability = no such legal concept, essentially is you did it you pay
Motions:
Motion to dismiss (demurrer) = after complaint is filed, defendant argues that assuming plaintiffs allegations are true, there is still no course of legal action. There is no sound legal theory.
Motion for summary judgment = after discovery process (interrogation and depositions), a reasonable jury could not find for the defendant.
Motion for directed verdict = after plaintiff presents case, plaintiff did not show a sufficient basis for holding defendant liable
Hammontree v Jenner
Epileptic man (Jenner) crashes into bike shop injuring owner (Hammontree).
Issue = whether strict liability from product liability can be applied to automobile drivers stricken by sudden ailment rather than negligence.
Holding = Precedent already dictated automobile drivers can only be held to negligence, furthermore applying strict liability to drivers stricken by ailment would discourage driving…not a beneficial thing for society.
An automobile driver cannot be held strictly liable for accidents resulting from a sudden, unpredictable ailment (heart attack with no warning, bee sting, sneeze, ect.)
Plaintiff mistakes = they dropped the negligence claim (the only case possible in California), they made a bad analogy to manufacturers, ignored supreme court and precedents, their proposed rule was overbroad, their court arguments were inconsistent with jury instructions.
Legal Philosophers on Liability:
Oliver Holmes = believes requirement for liability is that defendant must have made a choice (power to avoid is a condition for liability), states the public generally profits from individual activity…so we do not want to discourage it, state sponsored universal insurance is evil (increases incentive to act recklessly).
Posner = accidents are good and we should look for the efficient cost justified level of accidents, no moral indignation when the cost of precaution exceeds the cost of accident.
Efficiency basis = An action is desirable if it benefit one party by more than it injures the other so that the injuring party can fully compensate the injured and still be better off.
A tort can be considered a nonconsensual contract or an imposed transaction (you must only pay the value of the damage, extra emotional value is not added…so by taking something through tort you can avoid the extra cost)
 
Vicarious Liability
Where X may be liable for actions of Y based on their relationship.
Is a subcategory of strict liability. X can be held liable for actions of Y regardless of causation of fault on part of X.
Principle of Respondent Superior = let the master answer (employer is liable)
Christensen v. Swenson
A security guard (Swenson) left for lunch and got into an accident. Injured party sued both guard and employer (Burns). Employer got summary judgment on grounds that guard was not acting under the scope of employment.
Issue = Is the employer actually liable on the basis that reasonable minds could find that the guard was acting under the scope of employment?
Holding: Because reasonable minds could differ as to whether Swenson fell under the scope of employment at the time of the tort (set by the Birkner test), the issue should have been submitted to a jury and summary judgment was inappropriate.
Questions of fact must be submitted to the jury unless so grossly obvious it becomes a matter of law, in which case a judge may rule on it.
Rule: the employer is vicariously liable for torts by the employee acting in scope of employment
must be employer employee relationship
employee must have committed a tort
tort must have been committed in scope of employment
Birkner test looks at what constitutes scope of employment:
Employee conduct must be of the general kind the employee is hired to perform (Employee must be about the employers business as opposed to performing personal business)
Employee’s conduct must occur within hours and ordinary spatial boundaries of employment
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
Application of Birkner = Swenson’s job is to see and be seen thus traveling while in her uniform imparts a sense of security. Spatial boundaries could be considered a radius…she was permitted 15 minutes for a break and the café is within a 15 minute radius. A satisfied guard is efficient for the employer so Swenson’s nutrition is motivated by employer’s interest. THUS REASONABLE MINDS COULD FIND SWENSON WITHIN SCOPE OF EMPLOYMENT
Schwartz lists purpose of VL as: giving employers incentive to shrewdly select employees and supervise them, gives them an incentive to discipline employees who act negligently and expose employer to liability, and incentive to consider alternatives to employee effort.
Roessler v. Novak
Mr. Roessler went to the hospital where he was misdiagnosed and treated. The doctor that diagnosed him was an independent contractor for the hospital; Roessler is attempting to sue hospital under concept of VL.
Issue: Can the hospital be sued under VL?
Holding: Because the doctor met the rules of apparent authority and the hospital failed to disclose that the doctor was an IC, when Roessler relied upon the info and front the hospital provided, he was essentially defrauded.
General Rule for IC = The individual who retains an IC is not VL for the IC’s tort. (IC’s are specialists due to lack of expertise therefore it is unreasonable for you to supervise them)
Exception: VL can be applied and a principle may be held liable for acts of its agent that are within the course and scope of the agency.
2 agency types: explicit (principle tells client that the agent represents them) or apparent.
Apparent Agency Test:
Representation by the principle that they are an agent
Reliance on the representation by the third party
There is a change in position made by the third party based on the representation.
If the fact that an IC is contracted or an employee is questionable, there should be a clear disclosure that the IC is not an employee.
The concurrence stated that: the IC rule is unpredictable and inefficient. Instead there should be a policy of NON DELEGABLE DUTY where the hospital is VL for any contractor.
PRINCIPLE IS NOT LIABLE FOR IC UNLESS APPARENT/EXPLICIT AUTHORITY OCCURS…UNLESS NON-DELEGABLE DUTY IS ADOPTED IN THE JURISDICTION.
A principle can still be held liable on the rare instance where the situation is extremely dangerous
 
Negligence
Doing what a reasonable person would not do, or failure to do what a reasonable person would do in the circumstance.
Failure to exercise reasonable care.
Negligence Test:
Duty (one who creates foreseeable risk generally owes a duty to all people foreseeably endangered.
Breach
Causation (in fact = the action resulted in the damage)(proximate = the scope of the action…how much of the subsequent chain of events can be