Torts Outline

TORTS

I. Introduction to Tort Liability

A. What does a tort case involve?
1. Plaintiff who was injured
2. Defendant who is being sued for causing that injury
B. What is a tort? – an injury inflicted by one party onto another other than a breach of contract where the courts allow redress through the civil courts.
1. An injury
2. Civil matter
3. Question of Compensation (Who pays?)
C. Hammontree v. Jenner (unintentional injuries)
1. Absolute/strict liability – does not matter if the defendant was negligent. D can be held liable even if not negligent.
2. Negligence is the standard for drivers who lose control of their vehicle.
3. Rule – The standard for holding a defendant liable for the infliction of an unintentional injury is negligence.
4. Theory of cost internalization – our actions (driving a car in this case) have certain costs and benefits. We way those costs/benefits when choosing b/t alternatives (such as riding the bus or walking) b/c the alternatives also have costs and benefits. Then we make our choice. Costs should be internalized to the decision maker (he should have to pay) in order to encourage him to make the best choice for society as a whole.
D. Process of Litigation
1. Complaint filed by injured party
2. Motion to Dismiss – there is no legal cause of action
3. Motion for Summary Judgment – the facts are so in favor of one side or the other that the outcome is clear; court must give all benefit of doubt to non- moving party; no genuine issue of material fact that needs to be submitted to a jury;
4. Motion for a Directed Verdict – judge tells jury how to rule based on the facts
5. Motion for Judgment Notwithstanding the Verdict – no reasonable jury should have found that way based on the facts so the judge should override their verdict
6. Appeals

II. Vicarious Liability

This means holding someone who may be blameless responsible for someone else’s actions.
A. Respondeat Superior
1. Christensen v. Swenson
a. Employer’s can be held liable for their employee’s actions if the employee is negligent while carrying out the duties of employment even if the employer is blameless.
b. Three criteria used to determine if employee is acting within the scope of his/her employment
i. Is the employee’s conduct part of what the employee was hired to do? Is he about the business of the employer?
ii. Was employee’s conduct within the hours and boundaries of employment?
iii. Was employee’s conduct motivated, at least in part, by the purpose of serving the employer’s interests?
c. NOTE: in some cases, the employer was actually negligent as well. For example, they were negligent in hiring the employee or they were negligent in maintaining a policy which led to injury.
B. Ostensible Agency
1. Baptist Memorial Hospital Systems v. Sampson
a. Dr. that caused the injury was an independent contractor that worked at the hospital. P trying to sue the hospital. People who hire independent contractors are not generally held responsible for the contractor’s action while employers generally held responsible for employee’s action b/c employers have more control over their employees.
b. Should an entity or individual be held liable for someone who is not its agent or who, although an agent, has acted outside the scope of his or her authority, if they act in such a way as to indicate that the negligent person was one of its agents?
c. Rule – A plaintiff suing under this doctrine would have to prove that the principal’s actions led them to believe that the individual was in the principal’s employment and that they acted on this belief to their detriment.
d. D’s conduct creates the appearance of agency and P reasonably relies. Therefore, ostensible agency = apparent authority.

III. Standard of Care (Negligence)

A. What is Negligence
1. Did the defendant cause injury to the plaintiff by acting negligently?
2. Basic elements that plaintiff has to prove
a. Duty of care that D owed to P (what is the proper standard of care?)
b. Breach of that duty
c. Cause in fact
d. Proximate cause
e. Injury
B. Negligence and the Reasonable Person
1. Adams v. Bullock
a. Standard of care is reasonableness – what would a reasonable person have done under these circumstances? b. Was there an unreasonable risk that would warrant extra precautions being taken? D in this case did not create an unreasonable risk b/c they placed the wires under the bridge in such a way that they could not be reached under normal circumstances.
c. Foreseeability factor – would a reasonable person have foreseen that such events would occur? Court said the boy being shocked by the wires was an unforeseeable accident. There were miles and miles of wires and nothing special about this location to warrant extra precautions being taken. This situation not inherently dangerous.
d. There is such a thing as being too careful if the costs of taking the precautions are too large to be reasonable.
2. United States v. Carroll Towing Co.
a. B < PL (taking the proper precautions to guard against the risk of injury is less costly then the burdens of taking those precautions so if you do not take the precautions then you are negligent; Learned Hand)
i. B is the burden of adequate precautions
ii. P is the probability that an injury will occur
iii. L is the injury that will occur
b. This is a good formula in theory but not in practice (difficulty of assigning values to the variables)
c. In this case, it was fair to require a bargee to be on board during normal working hours. Therefore, the burden of having someone there was less than the costs if the precaution had not been taken and they are partly liable for the accident.
3. Concept of the Reasonable Person
a. Person of ordinary prudence who is not superhuman
b. Should not ask what most people would do but what a reasonable person would do in the situation?
c. Reasonable under the circumstances.
4. Bethel v. NY City Transit Authority – Common Carriers
A. Theory of Constructive Notice – they should have known something (∆ should have known chair was defective)
b. Standard of Utmost Care – common carriers previously held to this standard b/c customers relied on them for their safety.
c. New rule – “We thus realign the standard of care required of common carrier with the traditional, basic negligence standard of reasonable care under the circumstances. Under that standard, there is no stratification of degrees of care as a matter of law. Rather, there are only different amounts of care as a matter of fact.”
d. NOTE: AL and other jurisdictions still apply heightened standard.
5. Is it fair to apply this standard to everyone?
a. People who do not have the capabilities of a reasonable person are still held to the standard of reasonable care.
b. People with identifiable physical disabilities are held to a standard of care based on what a reasonable person with the same disability would do under the circumstances. (ex. – blind person)
c. People with mental disabilities are generally held to the same standard of reasonable care.
d. People with superior abilities must exercise those abilities when the situation demands it.
e. Children are generally held to a standard of care based on what a reasonable child of the same age, intelligence, and experience would do under the given circumstances. An exception to this occurs when they are engaged in adult activities and then they can be held to the adult standard. Very young children cannot be held negligent b/c they do not understand the risks involved in a situation. Parents can be held responsible in some cases.
C. The Role of the Judge and Jury
1. Who does what?
a. Judge decides issues of law
b. Jury decides issues of fact
2. Baltimore & Ohio Railroad Co. v. Goodman
a. Contributory negligence – traditional rule of tort law that when the plaintiff is somehow at least partly responsible for his injuries then the defendant cannot be held liable. (This is no longer necessarily the case)
b. Set down standard of law for other cases – Justice Holmes says that it is the role of the judge to lay down the law b/c this was a question of conduct (P was negligent) opposed to question of due care which the jury decides.
c. Man must get out of his care and look at RR crossings if he cannot see the track clearly. If he fails to do so, then he is negligent.
3. Pokora v. Wabash Railway Co.
a. An attempt to clear up the decision in Goodman. To get out of the vehicle and look would be an uncommon and not necessarily safe precaution.
b. The court says that a jury, not a judge, may decided whether with faculties thus limited, the plaintiff should have found other means of assuring himself to safety before crossing the tracks. There is a question of fact in this case as to whether or not the plaintiff exercised reasonable care and it should be decided by a jury.
4. Andrews v. United Airlines
a. A jury should decide whether or not there was a duty on the part of the airline to prevent plaintiff’s injury.
b. Also for the jury to decide whether or not the hazard is serious enough to warrant more than a warning that baggage may have shifted.
c. This is an example of applying the heightened standard to common carrier (airline). Must do whatever possibly can to protect passengers so must decide if the hazard is serious enough to warrant extra precautions.
D. The Role of Custom
1. Trimarco v. Klein
a. Is there a customary or standard practice in this area?
b. Custom gives powerful evidence of reasonable behavior b/c it represents the collective wisdom of the whole but custom is not decisive, fixed standard.
c. Shows feasibility b/c others have done it.
d. Shows that D should have known about the practice b/c others doing it.
e. It is for the jury to decide whether or not the use of safety glass in showers is a customary and common practice and if so, whether or not the defendant acted negligently by failing to comply with this practice.
E. The Role of Statutes
Negligence per se – negligence is established as a matter of law. An unexcused violation of a statute where the purpose of the statute is to prevent the acci