Torts Outline

TORTS OUTLINE

INTRODUCTION

Intro: Tort Law Purpose and Background

Policy: Tort law is, in many ways, a “type of insurance” to compensate plaintiffs for unreasonable harms they have sustained. Reasonableness is based on a cost/benefit analysis. Tort law addresses when defendant benefits but costs are to a third party.

Theories of Liability

1. Writ System: Historically, US used a complicated writ system in which a case was:

Trespass: strict liability for harms directly caused by defendant (e.g. tossing a log that hit someone); or
Trespass on the case: Must show “fault” (i.e., negligence) where harm indirectly caused (e.g., tossing a log that someone later tripped over).

Courts eventually abolish this distinction and move to the “Fault Principle” i.e., negligence standard. Burden of proof is shifted to the Plaintiff. See Brown v. Kendall (man separating dogs with sticks hits third party).

2. Strict Liability: one way of construing Tort law with certain policy advantages:

Encourages safety by ensuring defendant’s responsibility.
Fair to make defendant responsible for results of his action.
Costs of dangerous actions can be built into product/activity price.
Costs of loss can be spread to others (insurance).

Holmes critique: Without concept of fault we can trace actions back ad infinitum. General social insurance also not fair or efficient; why transfer money from one innocent person to another?

Hammontree v. Jenner: No strict liability for automobile accidents. Sugarman: problems determining who is strictly liable, e.g., two cars hitting each other.

VS.

3. Negligence Standard: same advantages as strict liability but different sense of fairness.

Somewhat of a “moral” standard in requiring due care only for blameworthy acts (e.g., not liable for sudden unexpected heart attack).
Encourages prevention more than strict liability? Arguable.

Intro: Vicarious Liability

Black Letter: An employer is jointly liable for a tort committed by an employee within the scope of his employment.

Policy: Fair to make employer pay for accidents arising out of his activities as a cost of business. Also looking for deep pockets; employer in a better position than employee to have work-related insurance as well

1. Employee vs. Independent Contractor

Employees: someone whom the employer has control over the physical details of the employee’s work, not just the general manner.
Independent contractor: someone whom the employer does not have immediate control over and does his own work/”is own boss.”

i. Determined by actual work, not title.
ii. If held out as an employee then liability applies (Dr. at hospital).

Control test (RofA3): Employer has right of control over person in performance of work. Cts. elaborate:

i. Extent of control, distinct occupation/business, specialist/skill, who provides tools, length of employment, lump sum or hourly pay, is work party of employer’s regular business, parties’ belief.

2. Scope of Employment (RofA2): Acts are within the scope of employment if:

Conduct is of the kind he is employed to perform;
Occurs substantially within the authorized time & space limits;

i. Commute between work
1. Traveling to work is outside employment because employer has no control over employee at this time
2. Returning home, courts are divided but most say no liability
ii. Detours from work depends on forseeability & mag. of detour

Acting at least in part with an intent to further employer’s purpose (even if unwisely or forbidden by employer)

i. Liberal view for policy reason to spread costs
ii. Smoking, and other acts not directly in furtherance of work considered foreseeable within the scope of employment
iii. Forbidden acts may be evidence that activity is outside scope of employment but employer is liable irrespective of own negligence

If an intentional tort liable if foreseeable

i. Done in furtherance of business (Beating someone to collect debt)
1. Can also analyze as motivation by “present interference” with duties for more remote acts.
ii. No liability for purely personal motives/lost temper
iii. Maybe liable if foreseeable or is a special duty of protection

3. Independent Contractors: usually no liability except in the following cases:

Non-delegable duty too important to delegate e.g., hiring mechanic to repair brakes
Inherently-dangerous activities: dangerous even with perfect precautions

i. Must be a peculiar risk e.g., not common like a negligent driver
ii. Less dangerous activities now being considered inherently-dangerous e.g., sewer dig with unguarded trench

Comment: LOTS of leeway in interpretation of whether particular situation falls within scope of employment or not.

THE NEGLIGENCE PRINCIPLE

Negligence Principle: The Standard of Care (BREACH)

Change from historical strict liability to the fault principl