Select Page

University of Connecticut School of Law
Pandya, Sachin C.

Pandya- Torts- Fall 2014                                                          
**“respondeat superior”
State of the Art:
Industry custom or industry practice
Safest existing technology that has been adopted for use
Cutting edge technology
Product risks and whether they were known or reasonably knowable
Ambition of Tort Law:have a set of legal principles and ideas which cover all sorts of accidents- i.e. transportation and medical accidents (1)
Losses should lie where they fall (Holmes)
Tort Liability: Injuries as a result of a complex society (2)
Civil redress only (2)
Reduce Risk:(2)
1) Level of care
2) Precautions you can take: level of activity
Fundamental Issue:When to shift liability from victim to injurer (2)
Goals of the system:
Corrective justice- duty to not injure; duty to repair (doesn’t care rich or poor)
Objective is to restore the individual back to before they were injured
Pre-accident position
Efficient deterrence- adopting rules that will have the effect of minimizing total costs that society will have to pay for (reduces the sum of accident costs exemplified by injuries)
Parado- Efficient: doing at least 1 person better and no person worse off
Kaldor-Hicks Efficient: makes at least 1 person better off, and can the person worse off, and still be ahead – “change behavior to reduce the accident cost for society”
Retribution- punishing someone for committing a morally offensive act, but making sure punishment is proportional
Punitive damages: punish someone for moral offensiveness of their actions
Where can losses lie?
Insurer (health)
Liability insurer
Government (social insurance system)- Medicare/Medicaid
Negligence Claim: π has to prove several conditions:
Duty of care (∆ has to owe a legal obligation to π); general or specific duty (physician-patient, etc.)
Breach of – ∆ failed to take a precaution that was necessary during the circumstances
Cause in Fact- Causal relationship-
Show breach of , injuries suffered by π, and how they are related
Proximate Cause- a label for the idea that there are certain kinds of consequences for a ∆’s action, that we hold the ∆ responsible for and others we don’t.
Idea that everything we change ripples out into the future- “infinite causal chain”
Damages- non-trivial
Vicarious Liability- hold one party responsible for the torts of another party- employers (17)
For π’s: sometimes it is difficult to find the π (i.e. baby)
For deceased victim:
Protected by “survival” statutes that allow the estate of the deceased to bring suit for any harm for which the deceased could have sued had she survived;
Wrongful death statutes
Is there an employer/employee relationship?
Does the employer have the right to control the worker as to the result [to tell the worker what is done] Does the employer have the right to control the means by which the worker obtains the result [can he tell him how to do it?] 1- Respondeat superior: necessary condition- worker has to be an employee
Christenson v. Swenson- 1994 (employee had car accident on lunch break) (18)
If negligence loses, respondeat superior loses.
Attaches to negligence and intentional torts
Birkner Criteria: to determine if working under the scope (not limited or necessary)
Conduct must be of the kind hired to perform
Must occur during working hours
Conduct must be motivated by the purpose of serving employer’s interest
2 reasons we have it: judgment proof employees and unidentified employee
2- Apparent authority-
Roessler v. Novak- 2003- (doctor sued by patient but doc not employed by hospital (independent agent)) (24)
Apparent Agency exists if there is:
A representation by the purported principle
A reliance on that representation by a 3rd party
A change in position by the 3rd party in reliance on the representation
– begin with damages in the real world to see if the cost of trial will be worth it 
What’s the probability you will win?What’s the pay off if you win?How much is it going to cost you?[[[    P(liability) x (payoff) – (cost) = expected value of your claim    ]]] Compensatory damages- restoring π to the rightful position (but-for ∆’s behavior) (710)
“Optional deterrence”- deter future people from committing that harm
“One satisfaction Rule”- in any lawsuit, you can bring multiple claims, but you can only get enough money to cover the loses that you actually suffer- no more/less
Household Credit Services v. Driscol- 1998-  (Awarded damages for past lost wages and future earning capacity) (TWEN)
Court did not give pain and suffering among others causes of action bc conduct supporting each cause of action was responsible for the same injury
4 steps:
Identify the losses caused by the ∆’s wrong, suffered by the π
Identify the subset of losses that the law recognizes
Premise- paying money to a tort victim is enough to accomplish corrective justice
Pecuniary Damages:
Economic Damages: Medical expenses, property damage, loss of earnings, loss of earning capacity[no limits] Wrongful death actions- economic loss to beneficiary/ pricing how much a child is worth
Non-pecuniary damages: pain and suffering, loss of enjoyment    [limits] McDougald v. Garber- 1989- (π in a coma cannot recover conscious pain and suffering- she is not actually suffering; tort system is compensation not punishment) (728)
Past damages, future damages (reasonably likely to occur)
Discounting to present value- πs want lump sum to collect interest over time;
Problem: damages are no more/ no less;
Solution: give total minus total possible interest
n    ]]]   present value= PV; future value= FV; interest rate= r; rate over time= n
Structured settlement: discounts the present value
Principle of single recovery: court’s job is to calculate a lump sum of types & time (720)
Pro: saves time/money/ π can’t take advantage/psychological closure
Con: inaccurate predictions of future loses
Periodic payment: usually for pecuniary loss
Conn. §52-225d (

award; also used wrong court [fed is more appropriate for actions against a company on national grounds]) (760)
3 guideposts from Gore (764)
Degree of reprehensibility of the ∆’s misconduct
Disparity between the actual/potential harm suffered by the π and the award
The difference b/w punitive damages awarded by the jury and the civil penalties imposed in comparable cases
Kemezy v. Peters- 1996- court stated poverty is a plea the ∆ makes to the jury, not a plea the π has to make on the behalf of his opponent. (770)
Collateral source, insurance, and subrogation
General rule: ignore expenses paid by collateral sources; wrongdoers shouldn’t benefit from the responsibility of the π
Note: Collateral Source Rule in CT
Collateral sources do not include amounts received by a claimant or settlement
Collateral sources are: insurance, any contracts to reimburse someone, etc.
Collateral source is not covered for which a right of subrogation exists
Arambula v. Wells- 1999- (π rear-ended by ∆ and π’s employer paid for missed wages) (742)
Court ruled π shouldn’t have to pay for his responsibility and gave double wages
, court held that public agencies should be subject to the same collateral source rules that apply to private ∆s.  (743)
Acuar v. Letourneau- 2000- if only given partial compensation from insurer, that does not matter bc court only looks to what the ∆ is liable for, and disregards ANY amount you receive from outside sources.   (748)
Bozeman v. State- 2004- court held the π cannot recover anything that Medicaid paid for, bc he did not contribute to that fund (749)
Insurance: (776)
Car insurance:1st and 3rd coexist
Contractual restrictions on coverage:
Limited to “accidents” – sudden events, unexpected, etc.
Subrogation (comes from contract, implied/equitable/ statute) (785)
Strict subrogation:(Walmart taking Mrs. Shank’s winnings)
Reimbursement action: an action brought against the tortfeasor
Insurer can sue ∆ for the tort if the insurer has a right to subrogation (if π doesn’t sue ∆ and just takes the insurer’s money)
If π sues ∆, π gets compensation, health insurer can sue π to recover the money the insurer paid the π
Liability Insurance Coverage for Punitive Damages (798)
Interpretation/effect of policy terms: i.e. intentional acts exclusion
Jurisdiction states vary on whether they will enforce an insurance policy covering punitive damages:direct liability; vicarious liability
Statutory Restrictions on Coverage