TORTS
Prof. Lars Noah, Spring 2005
I. Introduction
STANDARDS FOR LIABILITY (BLAMEWORTHINESS CONTINUUM)
Absolute Liability—Strict Liability—Negligence—Intentional Torts—Criminal Intent
**Central Problem for this class: When should liability be allocated to responsible party?
Hammontree v. Jenner: Driver who had epileptic seizure while on medication not strictly liable for auto axie. Negligence theory applies in most auto axies, but Π must show that a reasonable person would have done more to prevent axie.
STRICT LIABILITY does not require fault, only causation.
II. Vicarious Liability (Respondeat Superior)
VICARIOUS LIABILITY (Respondeat Superior) – Employers are liable for tort of employee if employee, at time of the tort, was acting within the scope of employment. Employee also liable for negligence. Business may or may not be vicariously liable for torts of independent contractors; would be liable under principle of ostensible agency if contractor was performing a non-delegable duty AND plaintiff justifiably relies on the appearance of agency.
Three justifications for vicarious liability:
1) Compensation: to ensure the victim is compensated (employer often can’t pay, so employer shared burden).
2) Deterrence: encourages companies to avoid losses by better hiring, training, discipline.
3) Fairness: Employers make money off employees, so they should pay when employees harm others on the job.
Plaintiff only gets one judgment award. Employer can then go after employee for indemnification.
“Negligent hiring” is a separate negligence claim apart from vicarious liability. This extends to torts outside the scope of employment.
EXAMPLE: Certainly, Domino’s would be liable if one of its drivers runs a red light and injures a pedestrian. But what if the driver breaks down, hails a cab, and the cab driver negligently causes a wreck? Is Domino’s liable? No, the cab driver is not an employee of Domino’s, but an independent contractor who falls outside the ostensible agency definition. What if the driver is a 14-year-old kid, who after dropping off his last pie, goes to a bar and gets drunk, then has a wreck. Domino’s then could be sued for NEGLIGENT HIRING, because it failed to adequately screen for the most important piece of information (the kid’s driving record). That failure is at least a contributing factor in the kid’s driving that night.
Christensen v. Swenson: Security company can be held liable for car accident caused by guard who drove across the street during a paid, unscheduled lunch break. It’s a question for the jury.
Baptist Memorial Hospital v. Sampson: Hospital not liable for malpractice by independent contractor doctors because hospital made no affirmative representation that doctors were employees.
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NEGLIGENCE
Elements of a negligence claim:
Duty + Breach + Causation + Damages = Liability (absent defenses)
I. Standards of Care
Rules
Key: Was ∆’s conduct reasonable under the circumstances? Did ∆ take reasonable precautions to reduce risk of foreseeable injury?
Almost always, Π has the burden of proof.
Fault liability = negligence/breach (accident is not enough; ∆ has to be at fault).
Cases
Brown v. Kendall: ∆ not liable because he was performing a lawful act in trying to protect himself and neighbor by beating away dogs. He acted with ordinary care, which is the degree of care which an ordinary and prudent man would use under the circumstances.
Adams v. Bullock: Trolley not liable because no way to foresee that a boy would cross the bridge swinging an 8-foot wire, strike the trolley wire, and electrocute himself. That is an unforeseeable risk which ∆ cannot be expected to prevent. Extraordinary measures, such as burying cable wires, would be an unreasonable expense.
It makes a difference how easily a company can take precautions. Compare Adams to Braun, where utility company can be held liable for failing to insulate power lines in a suit brought by electrocuted workman.
Public Policy: Fault principle developed because judges feared that traditional common law principle of strict liability would cripple development in an age where accidents were becoming a fact of life.
II. BPL v. RPS (reasonable person standard)
CALIBRATING THE STANDARD OF CARE:
1) Common carriers: In many jurisdictions, they owe a greater standard of care. Bethel v. NYC Transit is not a typical case, but it highlights that these cases are responsive to the circumstances, which are taken into account; so, essentially, the decision still allows for jurors to hold common carriers to a higher standard.
2) Dangerous instrumentalities: have to be more careful; e.g., gasoline in a mechanic shop; guns. (See Wood v. Groh, the case of a father who stored gun and ammo in same cabinet).
3) Physical disabilities: This is taken into the circumstances of the case. But generally, we don’t make exceptions in these cases; reasonable person standard applies, although jurors may take the disability into account as to what a reasonable person in that circumstance would have done.
4) Mental disabilities: ditto
“Reasonable person standard” is based on two assumptions, both of which focus on objective/external factors:
1) We measure liability by actions, not internal state of mind; and
2) We evaluate those actions against an imaginary, objective “reasonable person,” not by an individual’s capabilities.
Why? One reason is administerability of the law. It would be impossible to measure each individual’s case by what that individual is capable of. Second, there is a societal desire to encourage people to raise the bar, so the public welfare is improved. We don’t want to encourage people to sin
intiff doesn’t meet its burden on the elements.
Goodman (J. Holmes): Judge should have taken case away from jury. Established judge-made rule that motorist should have gotten out of his car and looked before crossing railroad tracks.
Class discussion:
Noah: Holmes comes along and lays down the rule. Says he – the court and not the jury – can decide what reasonable care is based on the facts. What’s he doing here? Maybe he was thinking about reducing the number of cases that go to the jury, or even get filed, because a “bright-line rule” hasnow been established. But what do judges know? They can’t imagine every scenario. That’s what Pokora stands for.
Pokora: Rejected judicial rulemaking approach of Goodman in favor of letter juries decided whether a Π is comparatively negligent.
Akins v. Glens Falls City School District: Spectator at baseball game struck by foul ball. Court tossed out suit because, judges said, defendant had exercised reasonable care in erecting backstop. MINORITY JUDGES HERE WORRY THAT THE DECISION WILL CREATE A MINIMUM STANDARD OF CARE THAT WILL NOT ENCOURAGE ANY SAFETY INNOVATIONS.
Heller v. Encore of Hicksville: Hairdresser failed to warn customer of danger of smoking. Jury’s call whether hairdresser acted reasonably upon a risk that may have been foreseeable.
Andrews v. United Airlines: Jury’s call whether airline should have taken greater precautions to prevent overhead luggage from toppling on passenger’s head.
IV. Role of Custom and Statutes
Not every negligence case goes to the jury with the same standard “reasonable person” standard. Sometimes, judges particularize the instructions for (1) customs (usually industry customs), and (2) statutes, where there has been a violation of statute.
Custom entails a question of knowledge. But custom is not conclusive, not determinative in itself of negligence. Violation of custom is in no way negligence per se; it simply supports the claim, gives it more weight in terms of what ∆ knew, or what he ignored.
What’s custom good for? From the side of Π, the establishment of a custom is: evidence of knowledge, evidence of technical feasibility, evidence of technical affordability. From the side of ∆, no custom equals: lack of evidence of knowledge, lack of tech. feasibility, lack of tech. affordability.
