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University of Connecticut School of Law
Schmeiser, Susan R.

Prior Knowledge of a Dangerous Condition
Hammontree v. Jenner: Jenner (∆) had a prior history of seizures, was on medication for them and had the OK from the doctor to drive – years since last seizure – ∆ suffered from seizure, went unconscious, crashed into wall of π’s shop – π urged court to hold ∆ strictly liable [3] Holding: Prior knowledge of a condition that would prevent somebody from acting responsibly/non-negligently obliges that person to take precautionary measures to prevent harm to others – but when those measures are taken, and the situation is reasonably believed to be under control, ∆ is not liable if unforeseeable event occur
A.   Vicarious Liability
                    i.            Respondeat superior:  The principal is responsible for tortious acts committed by its agents in the scope of their agency or authority.  (Christensen v. Swenson, 19)
·         Different from indemnification:  In Respondeat superior, the π directly sues the employer of the negligent person.
·         Exception: Independent Contractor
                  ii.            Employment Strict Liability
a.      Why Hold Employers Liable?
·         Judgment-proof problem – employers have greater assets than employees
·         Unidentified injurer: in a large company, difficult to identify who committed a tort, so its easier to just hold the company liable
Christensen v. Swenson: Swenson working for Burns security company – car accident on her way to get lunch, injuries to π – working within the scope of her employment? – summary judgment for π inappropriate because reasonable minds could differ if she was working in scope of her employment [18] Holding: no summary judgment – Berkner criteria for determining if employer is liable – employer liable if (a) employees conduct is the general kind he is hired to perform, (b) employee acted within temporal and spatial boundaries of employment, and (c) conduct was motivated (in part) by purpose of serving employers interests.
A.   Historical Development
                                i.            Burden of Proof: π has burden of proof to show ∆ did not use ordinary care
a.      If the jury is on the fence, tie goes to the ∆ – π’s burden to push jury over the fence
Brown v. Kendall: Δ and π dogs were in a fight, Δ tries to break it up with a stick, and accidentally hits π in the eye (35)
Ordinary Care: The kind of care which prudent and cautious men would use is required by the exigency of the case, and is necessary to guard against probable danger
Holding: Since ∆ was doing a lawful act, and both ∆ and π were acting with ordinary care, ∆ is not liable – only would have been liable if he was not acting with ordinary care
∆ uses ordinary care
∆ not exercises ordinary care
π uses ordinary care
Judgment for ∆
Judgment for π
π not use ordinary care
Judgment for ∆
Judgment for ∆
                              ii.            Breach of the Standard of Care: A party will not be held negligent if he has taken reasonable precautions to avoid predictable danger – A duty exists to adopt all reasonable precautions to minimize the resulting perils
Adams v. Bullock: π was walking over a bridge dragging a wire – bridge went over a trolley with wires above it and got electrocuted (39)
Holding: Trolley was not negligent because they did not breach the standard of care – they could not have reasonably foreseen the accident and it was not economically feasible to put wires underground
                            iii.            Factors to Establish Liability: Liability found on three factors (Carroll Towing)
a.       Probability that accident will happen (P)
b.      gravity of resulting injury (L)
c.       burden of adequate precautions (B)
d.      If B>PL, defendant is not liable
Carroll Towing: π’s barge was negligently tied to a tug boat, broke free, hit another boat, and sank
Holding: ∆ is liable because they should have had somebody on the barge to watch it – not a great burden and the risk of accident and the injury were very high (43)
B.   Reasonable Person
Reasonable Person: varies based on circumstance and capacities of ∆ – objective standard
·         Objective standard: mindset of the specific person does not matter – its how a reasonable person in the same situation would act (not how this one specific person acted or what they were thinking)
Bethel v. NY Transit: wheelchair seat in bus collapsed and π was injured – π argued that common carriers have a heightened standard of care (49)
Holding: in todays world, a reasonable standard of care is sufficient – don’t need heightened – standard of care takes into account the circumstances at the time ∆ acted (judgment for ∆)
Wood v. Groh: Son of ∆ shot daughter of π accidentally when son stole the gun out of a locked cabinet
            Holding: should be a heightened standard of care in regards to dangerous instrumentality (59)
C.   Roles of Judge and Jury
Is there a duty of care? – issue of law – question for the judge
Has it been violated? – issue of fact – question for the jury
Jury System Pros
Jury System Cons
·         Aggregate (collection of minds)
·         Representative of community
·         Evidence – not a repeat player
·         Jury nullification
·         Passion > Reason
·         Jury doesn’t have to list reasons, just has to give a verdict
Baltimore and Ohio Railroad v. Goodman: (1927) π got hit by train when driving across tracks – sued railroad for damages – Court says that he should have gotten out of his car and looked both ways before crossing the tracks – set a new standard for railroad cases (60)
Holding: π should have been operating under a heightened standard of care because he knew that the train tracks were there – decision of standard of care should be up to the judges, not a jury because a judge has experience and they can deal with a rule better than a jury (Holmes)
Pokora v. Wabash: (1934) very similar facts as Goodman – Cardozo argues that the holding was correct in Goodman but says that Holmes’ argument was all dicta so he isn’t bound by it (62)
Holding: a jury is a better fact finder than a judge in this situation, and a reasonable jury could find that π did everything he could to avoid harm – Cardozo claims he isn’t overruling precedent, just dicta
Andrews v. United Airways: π was passenger on flight and was hit on the head with falling luggage – ∆ could have put netting up on planes but argues that since the number of reported accidents is so small, a verbal warning is sufficient (65)
Holding: Court held that its up to the jury to decide whether the risk is substantial enough to warrant the heightened standard of care – Common carrier standard: duty of upmost care and vigilance of a very cautious person
D.   Custom
                                i.            Two-prong test for the jury to decide proof of customary practice:
a.       reasonableness of the custom
b.      custom must be fairly well defined in business: implies ∆ knew or should have known it was the custom
Trimarco v. Klein: π fell through glass in shower and sued landlord. Argued that it was customary at the time to install shatterproof glass – ∆ argued it was only necessary if π had asked (68)
Holding: Dismissal reversed – jury question of standard of care – can’t have a “race to the bottom” because then its possible to have common practice be lower than the standard of care
Sheeley v. Memorial Hospital: (107) Complications during a birth – did emergency surgery
Holding: physician is under a duty to use the degree of caution and skill that is expected of a reasonably competent practitioner in the same class, acting in the same or similar circumstances.  The strict locality rule is outdated – focus on knowledge, skill, practice, experience, training, and education – broadens the scope of experts
E.   Roles of Statutes – Negligence Per Se
                                i.            Negligence Per Se: if π can show that violation of statute by ∆ cause the accident, its is negligence
                              ii.            Restatement Excuses for Negligence per se:
a.       Actors incapacity
b.      Didn’t know or shouldn’t have known of occasion for compliance (new law)
c.       Unable after reasonable diligence or care to comply
d.      Confronted by an emergency
e.       Com

tatutes that Impose duty: duty to aid another exposed to serious harm, duty to report a crime if witness, limited immunity (good samaritain)
                            iv.            Special Relationship: A duty to act is imposed when the situation involves certain relationships between the P and D.  (Harper v. Herman, p. 135)
a.      A special relationship arises when a person is in custody or deprived of normal opportunities of self-protection.   (Harper v. Herman, p. 135)
b.      Superior knowledge alone does not abrogate the common law doctrine of affirmative duty to act.  (Harper v. Herman, p. 136)
Harper v. Herman (131): Harper invited by Herman to go for a sail, boat in shallow water, harper jumps out and gets injured
Holding: No special relationship because harper did not have custody and did not deny normal opportunity for self protection – Superior knowledge of a dangerous condition by itself in absence of a duty to provide protection is insufficient to establish liability in negligence
                              v.            Voluntary Undertaking/ Social Venture/ Common undertaking:
a.      Social Venture: companion on a social venture have an implicit understanding that one will render assistance to the other if he can do so without endangering himself
b.      Common undertaking:  If 2 parties are engaged in a common undertaking, a special relationship arises requiring one to help the other if the need arises.  (Farwell v. Keaton, p. 142)
c.       Voluntarily undertaken act of rescue:  R2T 324(a) requires a rescuer to use reasonable care and 324(b) allows the rescuer to stop if don’t leave worse off.  (Note 4, p. 144)
d.      Once rescue has begun, continuing obligation to help.  (R3T, Note 4, p. 145)
Farwell v. Keaton (136) – Asshole friend lets friend die after he gets beat up
Holding: There a special relationship because they were on a social venture – Absent a special relationship, there was still a voluntary undertaking because he gave him ice, shook him to wake him up, drove him around – Once you voluntarily undertake responsibility, you have a duty
                            vi.            Third Party duty due to physician-patient relationship: If a special relationship to the (a) dangerous person or (b) the potential victim, the law imposes liability to use reasonable care to protect the victim.  (Tarasoff, p. 160).
a.      R2T 315: Relationship must be one that imposes a duty upon the actor to control the 3rd person’s conduct.    (Tarasoff v. Regents of University of CA, R2T 315 – 319, Note 1, p. 162)
b.      R2T 316-319:  An actor who knows or should know that he or she has the ability to control the third person and knows or should know of the need of actions comes under a duty to do so. (R2T 315 – 319, Note 1, p. 162)
Tarasoff v. Regents of University of California – Patient tells psychologist that he wants to kill Tatiana, she tells her superior, patient held overnight in jail, and then let go because he’s not crazy, then kills Tatiana
Holding: Patient relationship is a special relationship where doctor must try to reduce risk by warning someone – Once a therapist determines or should have determined that a patient poses a serious violence to others, the therapist owes a duty to exercise reasonable care to protect the foreseeable victim of the danger – Public policy of protecting Tatiana is greater than doctor patient confidentiality