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Torts
University of Connecticut School of Law
Pandya, Sachin C.

TORTS OUTLINE
Pandya Fall 2011
 
(1) Hammontree v. Jenner
Facts: Epileptic is driving—with a license and state knows he has epilepsy plus his doctor said he was OK to drive—and he has a seizure (even though taking his meds) and crashes into woman’s store and injures her.  She sues. She drops the charges of negligence and seeks strict liability.  She doesn’t get it.
Principle:
 
VICARIOUS LIABILITY
Doctrine of Respondeat Superior: “Employers are vicariously liable for torts committed by employees while acting within the scope of their employment.” (p. 19)
 
(2) Christensen v. Swenson
Facts: Swenson was a guard at the steel plant on an eight-hour shift without a break for lunch or bathroom, though she was allowed to order in or run out to get food across the street.  Company knew about the food because the menu was prominently displayed in the office.  Swenson was rushing back to work, driving negligently, and crashed and injured P, who sues employers.
Principle: Three part test for respondeat superior:
1)      Employee must be “about the employer’s business and the duties assigned, and not wholly on a personal endeavor”
2)      Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of employment
3)      Employee’s conduct must be motivated “at least in part” by purpose of serving employer’s interests
Burns responsible because: A) Having Swenson drive around in uniform heightened security, B) Burns was aware (never disciplined) and tacitly sanctioned that its guards would satisfy their need for nourishment in this way, c) “no break policy” encouraged her to be going too fast
·         As for “spatial boundaries” (she was just outside), it’s left to the jury
Restatement 7.07(2)
·         Vicarious liability gives incentives to supervise employees and be selective in whom one employs
·         Vicarious Liability “a kind of strict liability”
·         Assaults: no to the postal worker seeking to sue post office after boss beats him up in a fight, but yes to the parents of child injured by assaulting baby sitter (at day care facility) because she was responding “to stimulus of the job. 
           
(3) Roessler v. Novak
Facts: Mr. Roesler was admitted as an outpatient at Sarasota Memorial and treated by a radiologist whom Roesler believed worked for the hospital, but who in fact was an independent contractor.  There was malpractice, but the hospital claimed that its not responsible for the contracted party’s actions. 
Principle: Apparent Authority: An actor is responsible for the conduct of an agent when it has—based on an objective standard—presented to the world that the agent is acting on its behalf.  Rest. 409 says employer not responsible for contractor’s action or inaction except in Rest. 429: when services “are accepted in the reasonable belief that the services are being rendered by the employer or by his servants,”—subjective .  (Court: Objective standard vs. Restatement: Subjective (but objectively reasonable) Standard). 
·         Whether facts support Apparent Authority: Issue for Jury to Decide
·         Note 1: Putting up signs is enough, even in the ER
o   P must show detrimental reliance
·         Restatement more P friendly than court in Roessler
Concurring opinion: Apparent authority generally good, but not in complex hospital realm, where it should not be left to jury.  Instead, there should be “nondelegable duty” over apparent agency proscribed to all hospitals. 
 
COMPENSATORY DAMAGES
Pecuniary Losses (“Out of Pocket”)
1.      Medical Expenses
a.       Future Therapy requirements not always straight forward. 
b.      No recovery for later relapses/unanticipated setbacks
2.      Loss of Income
a.       Work-life Expectancy Determination
b.      Earning power of this P
c.       Discount Factor (present value of money)
c.i.                     Determine (prospects of increased pay in future—look at type of job and mobility; young people very complicated
3.      Pain and suffering
4.      CA Jury Instruction: “Reasonable for any pain, anxiety, fears, emotional distress.  No definite standard proscribed by law.  No requirement of expert opinion.  Should exercise discretion with calm and reasonable judgment in the light of the evidence.”
Note 9 on p. 714: Middle range for this type of injury should be given presumptive validity
Arguments in favor of Pain and Suffering Damages:
1.      Compensate for attorney’s fees (why not fee-shifting)
2.      Though we can’t monetize everything, we can still provide a little to alleviate or compensate.
3.      Posner: everyone would pay to avoid pain and suffering and not to include it would unfairly lower the cost to a tortfeasor of her negligence
Arguments in favor of Pain and Suffering Damages:
1.      Mandatory insurance that people don’t want
2.      Meaningless in restorative terms when applied to past pain (Jaffe)
3.      Very hard to administer from case to case because it’s intangible and therefore unpredictable
Policy: Administrative Costs of continuing supervision too high PLUS difficult to maintain jx—want people to move on with their lives and don’t want to incentivize fraud
 
DAMAGES
(4) Seffert v. LA Transit Lines
Facts: Woman dragged by bus and severely injured.  Awarded a lot of money for pain and suffering damages, and there’s an appeal of the size of that award.
Principle: All presumptions are in favor of the finding of the trial court; damage awards for “pain and suffering” must “shock the conscience of the appeals court” to be overturned.
·         Traynor Dissent: Awards of similar damages should be looked at (Posner concurs).  A per diem misleads the jury.
Courts split: some allow per diems as a way to calculate and some don’t
·         Traynor; Consistency important because D’s should know what the cost of their conduct is going to be.
 
(5) McDougald v. Garber
Facts: Woman is no longer conscious.  Someone sues on her behalf for pain and suffering damages, and for “loss of enjoyment” that she’s unaware of.
Principle: Cognitive awareness is a pre-requisite fo

(Posner)
2.      Fills gap where criminal law doesn’t go
 
NEGLIGENCE
 
(8) Brown v. Kendall (Supreme Court of Massachusetts, 1850)
Facts: Two men’s dogs were fighting, and D used a stick to try to separate and unintentionally struck P, causing grave injuries.  Jury instructions stated that if D was not duty-bound to interfere with the dogs, then the burden was on D to prove that he used extraordinary care, lest he be liable.  Appealed by P.
Principle: New Jury Instruction: “If the act was unintentional on the part of D, and done in the doing of a lawful act, than D was not liable, unless it as done in want of exercise of due care.”  Reasonable Man Standard—puts burden back on P to prove that D wanted for reasonable care.  Was this designed w/industrial revolution in mind—allow factories off hook?  Was this was just a dog fight.
 
(9) Adams v. Bullock
Facts: Boy was swinging a wire over a bridge and it struck an electric cord and electrocuted him.  Sues for negligence in not covering the wire properly.
Principle: Cardozo: So unlikely that no reasonable juror could find negligence (Hand-ish)— also points to the impossibility of policing the entire length of the trolley line to make sure people don’t’ swing sticks.  “Chance of harm, though remote, may betoken negligence if needless.” 
            Bruan (Note 2, p. 41)—Facts: Wires strung above vacant lot with protective coating that degenerates in three years.  Fifteen years later, people built up a building on the lot and were electrocuted.  Principle and differentiation: D was negligent in inspecting the coating that was already put in place in Braun—demonstrated an awareness of dangers in this case of unprotected wires. 
·         Superior Attributes Asymmetry: One with superior attributes held to higher standard
 
HAND TEST B £ PL
(10) United States v. Carroll Towing Co.
Facts: Barge became loose from tug and no bargee aboard during normal hours.
Principle: “The owner’s duty…to provide against resulting injuries is a function of three variables: 1) The probability that she will break away; (2) the gravity of the resulting injury, if she does, 2) the burden of adequate precautions.”
“Not so clear that Judge Hand had the Cost-Benefit Analysis in mind.”  Think about the Burden of Adequate Precaution.
“Hand Formula Difficult to apply in the personal behavior context.  In personal, rather than business context, how do you monetize the value of extra precaution?”