TORTS
PANDYA
FALL 2012
Purposes of Tort Law
1. Corrective justice
a. Duty not to injure
b. Duty to repair
i. Rich or poor doesn’t matter
ii. What behavior was, not what it will be
2. Efficient deterrence
3. Retribution (punitive damages)
I. Vicarious Liability
A. Respondeat Superior: The principal is responsible for tortious acts committed by its agents in the scope of their agency or authority (Christensen v. Swenson, p.18)
· Different from indemnification: In Respondeat superior, the P directly sues the employer of the negligent person
· Exception: Independent Contractor
· Under vicarious liability: If tort claim brought against employee fails then the claim against the employer is dropped
· Vicarious liability: Important because you cant hold a corporate entity responsible, need actual flesh and blood
1. Christensen v. Swenson: security guard went out to get soup & hit motorcyclist
· For an employee to be vicariously liable for the torts committed by an employee, the employee must have been acting w/i the scope of his employment (p.18)
· Scope of employment: The tort is within the scope of his employment if the tortfeasor was acting with intent to further his employer’s business purpose – even if what he does is indirect, unwise or forbidden
· 3-Step Birkner Test: Determining whether acts fall within scope of employment
a. Conduct of a general kind employee is hired to perform
b. Within the hours and location (spatial boundaries) of employment
c. Serving the employees interest (rather than an entirely personal endeavor)
· Respondeat superior does not bar suit against an employee for their tortious conduct. Instead, it provides a second, perhaps more solvent target for the P to sue
B. 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
· 3-part Apparent Authority Test:
a. A representation by the purported principle
b. A reliance on the that representation by a 3rd party
c. A change in position by the 3rd party in reliance on the representation
· Roessler v. Novak: Dr. made negligent diagnosis while working as an independent contractor at SMH (p. 24)
o A principal may be liable to a 3rd party for the acts of its agent which are within the agent’s apparent authority
II. Damages
A. Compensatory Damages: awarded to compensate for the defendants wrongful action
· Restore victim to prior condition
· Make people more carful/aware of things
· Pecuniary: Income (past & future), medical expenses (discounted to PV)
· Non-pecuniary: pain & suffering, defamation (usually no discounting to PV)
1. Principle of Single Recovery: calculating time value of money (discounting to PV)àno life expectancy calculation without
· FV=PV(1+r)^n : PV=FV/(1+r)^n
2. Contingency Fees
· Pros and cons
3. Judicial limitsàExcessive damages
· Defendant may ask: error of lawànew trial or ask for new trialàJudge: agrees or grants new trial, or remittitur (rarely there is an additur)
4. Seffert v. Los Angeles Transit Lines: Lady was boarding a bus when the door shut on her suddenly trapping her right hand and left foot
· An appellate court can interfere on the ground that the verdict is so excessive, at first blush, it shocks the conscience and suggests passion, prejudice, or corruption on the part of the jury (p.711)
· Traynor’s Pass-through point: (capacity of defendants to shift losses)
a. Liability insurers
b. Consumers (higher prices)
c. Workers (lower wages)
· Defenses
a. Terms of coverage (exclusions, policy limits)
b. Market structure (going somewhere else)
c. Labor law (union)
B. Punitive Damages: to punish the wrongdoer, there must be intent
· Taxable
· For outrageous and malicious conduct
1. Does the law of the jurisdiction allow it?
· Common law doesn’t allow itàonly by statute
2. Eligibility: intent/recklessness (malice)
3. Evidence: size of punitive damages
a. Defendant’s wealth is relevant (unlike compensatory)
b. Evidence only after liability is established (don’t want stick it to the rich guy)
4. Limits (of punitive damages)
a. Common law
b. Statutes
i. Factors that must be considered (factors jury must be instructed of)
ii. Caps (max amount)
iii. Splits (plaintiff only gets part, state gets rest)
iv. Clear and convincing (plaintiff has a higher burden of proof)
c. Constitutional
v. Federal constitution
vi. State constitution
5. Liability Insurance
a. Policy terms (will they cover the punitive damages payment)
i. Intentional acts exclusion
ii. State contract lawàState insurance law
b. Void for public policy
Breach (of standard of care)
3. Causation
· Cause-in-fact
· Proximate cause (scope of defendant responsibility for the harm they caused)
4. Damages
· Losses suffered
B. Standard of Care:
1. What is the standard of care?
2. Brown v. Kendall: accidentally hit guy in eye while separating dogs w/ stick
· Plaintiff must show that the defendant’s conduct imposed an unreasonable risk of harm to the plaintiff (p. 35)
D exercised “ordinary care” D at fault
P exercised
“ordinary care” D wins P wins
P at fault D wins D wins (b/c contributory negligence)
3. Ordinary care: The kind of care which prudent and cautious men would use such as is required by the exigency of the case, and such as is necessary to guard against probable danger (Brown, p. 37)
4. Contributory negligence: a defenseàD shows that P caused part of the injury
5. Comparative Negligence: a defenseàDamages are apportioned by each party’s share of fault
6. Fault principle: P must show either that (1) D had an UNLAWFUL INTENTION (i.e., an intentional tort); or (2) that D acted in FAULT (i.e., negligence)
C. Breach of the standard of care: foreseeability, safeguarding
1. Adams v. Bullock: 12 year old electrocuted by trolley wire
· A party will not be deemed negligent if he has taken reasonable precautions to avoid predictable danger (p.39)
· A duty [exists] to adopt all reasonable precautions to minimize the resulting perils (p.39)
· Holmes: Test of negligence is what is reasonable under the circumstancesàcost vs. benefit (or risk)
2. US v. Carroll Towing: barge sank slowly while barge operator was away
· To establish negligence, plaintiff must show that the defendant’s conduct imposed an unreasonable risk of harm on the plaintiff (p.43)
· Hand Formula: B < P*L
o B=cost of precaution, P=probability of loss/injury, L=gravity of loss/injury
o Conceptual way in deciding if the possible precautions should have been takenàdid not taking precaution violate the standard of care
o If B
PL then no negligence
