Torts
Noah
Fall 2015
Introduction
The primary concern of tort law has been whether one whose actions harm another should be required to pay compensation for the harm done. A tort is consisted of (1) a duty, (2) a breach, (3) causation, and (4) damages
Standards of Tort Liability
A. Absolute Liability
a. π only needs to prove that ∆ caused the injury
B. Strict Liability
a. π needs to prove that ∆ caused injury and that ∆ should have known of the risk
C. Negligence
a. π needs to prove that ∆ caused injury and that ∆ failed to act reasonably
D. Intentional Tort
a. π needs to show that ∆ meant to cause offensive contract
E. [Criminal Offenses]
Vicarious Liability
A. Background
a. Often breach of duty in occupational setting
b. “Respondent Superior” à when employers are held responsible for the torts of their employees
c. The employee must be negligent for liability to attach to the employer
i. Example: If an employee has an uncontrollable seizure while driving delivery car and has no history of seizures, the employer will not be held liable (no negligence)
d. Exception:
i. Fellow Servant Doctrine
1. If an employee acts negligent and injures a co-worker the employer is not held vicariously liable
a. Courts do not want to discourage industrialization
b. Assume the risks of working in certain environments and know what to look out for while in that environment
e. If an employer is negligent in hiring an employee the employer is directly liable
i. Applies even when the employee is not acting within the scope of employment
1. Example: Bartender with a violent track record, that was negligently hired, punches a customer à Employer liable
B. Employee is within the scope of employment
a. If an employee is acting within the scope of employment, liability attaches to the employer
b. Birkner Criteria
i. The employee’s conduct must be of the general kind that the employee is hired to perform à About the employer’s business and the duties assigned à Not a personal endeavor
ii. The employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment
iii. The employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
c. Violation of a safety instruction does not necessarily mean that the employee is not acting within the scope of employment
i. Warner Trucking
d. If an employee conducts a tortious act when responding to a work stimulus the employee may be viewed as acting within the scope of employment
i. Baker v. St. Francis Hospital
C. Employee is not within the scope of employment
a. If an employee is acting outside the scope of employment, liability will not attach to the employer
i. Employee goes drinking after shift at work, negligently causes accident on the way home à employer not liable because outside the scope of employment
b. Many gray areas making it difficult to determine if an employee was acting within the scope of employment
i. Jury question
ii. Example: Christenson v. Swenson
1. Leaving work to pick up lunch while still on the clock and causes auto accident
iii. Example: Talking on the phone with a client on the way into work and getting into an auto accident
iv. Employers may or may not be found vicariously liable
D. Independent Contractors
a. Independent contractors are often not within the scope for vicarious liability
i. Reasoning:
1. Hiring an expert
2. Less opportunity to discipline what they are doing
b. Often leads to apparent authority
i. Representation + Reliance + Detrimental Reliance
1. Often seen in hospital staffing
ii. Non-delegable duties
1. Can be liable if there are certain risks involved in a job and the independent contraction fails to take the proper precautions to adhere to these risks
E. Summary
a. Employers are responsible for the negligent acts of their employees when:
i. Employee is acting within the scope of employment
ii. Employer is negligent in hiring employee and they commit a tortious act
iii. Employer commits tortious act when responding to a work stimulus
iv. Independent contractors when
1. Negligent Hiring
2. Apparent Agency
3. Non-delegable duties
F. Rationalization/Critiques
a. The basic reasoning for the doctrine of Vicarious Liability is that employees often do not have the money to pay for their tortious acts
b. Creates a deterrence to employees not to hire poor employees
c. The cost of doing business
i. At the end of the day the customer is the one paying the fees
i. Wood v. Groh
1. Son took gun and ammo from father’s locked (but easy to break into) gun cabinet and accidently shot π
a. Court held that the father owed a heightened standard of care in keeping the gun safe locked
b. Concluded that due to the gun’s dangerous instrumentality the father owed the highest duty of care to protect the public from misuse of the gun
d. Superior Attributes à Restatement § 289 (b)
i. Idea that if someone has special knowledge to avoid negligence they should be held to a higher standard
1. Example: Dr. performing CPR on the scene may have heightened standard of care even if off duty
E. Lessening the Standard of Care
a. Emergency Cases
i. Purpose: When confronted with a sudden and unforeseeable occurrence, one should not be held to the same standard because of the shortness of time to react
ii. Some courts refuse to give this instruction in negligence cases
1. General negligence standard encompasses any legitimate negligence concerns based upon the circumstances
b. Physical Disabilities
i. Courts will draw to the circumstances
ii. Example: A blind person trying to save a vehicle from a driver who is suffering from a seizure will not be held to the same standard of care
iii. Roberts v. Rambsbottom
1. Driver suffered seizure while driving. His consciousness was impaired but was still in sufficient possession of his facilities
2. Court held that driver will escape liability if his actions are beyond his control, but if he retains some control, although imperfect, judged objectively and remains liable à Although not morally to blame, nonetheless responsible
c. Mental Disabilities
i. In order to avoid liability, need to manifest distinct proof of the disability
ii. Generally doesn’t permit exceptions
1. Issue of proof
2. Truthfulness of the ∆
3. Less about physical vs. mental à more about being sufficiently clear for everyone to tell and take seriously
