Torts Outline

Noah

Torts

Fall 2010

Standards for Liability (Blameworthiness Continuum)

Absolute liability — Strict liability — Negligence — Intentional Tort

π only needs to prove ditto, plus that Δ should ditto, plus that Δ Δ meant to cause

that Δ caused injury have known of risk failed to act reasonably offensive contact

Vicarious Liability

Respondeat Superior – employer is held liable for tortious (negl.) acts of employees during scope of employment

(Strict Liability)

Exceptions:

1. Employee not w/i Scope

(a) Negligent hiring/ supervision

[Not genuinely vicarious]

2. Independent Contractors:

(a) Negligent selection

[Not genuinely vicarious]

(b) Apparent Agency

(Representation + reliance)

(c) Non-delegable duties due to public policy

(Duty to keep premises safe) (Peculiar risk) (so severe that it would be morally wrong to place an undue burdan on the S.C.

The risk is so severe that you can’t delegate the risk! Delta cant contract out everything b/c its too dangerous!

Apparent Agency (Roessler v Novak)

1. Conduct by the principal (hospital)

2. Caused the patient to reasonably believe that the agent (doctor, radiologist) was an employee of the principle

3. And that patient justifiably relied on the appearance of the agency. (employee/employer relationship)

Limitation of R.S. à Fellow servant rule- employee cannot sue an employer for the negligence of a coworker

– Intentional torts are outside the scope of employment

– Indemnification- if the employer pays out damages, the employee still owe them!

Negligence Elements: Duty + Breach (Negl.) + Causation + Damages = Liability (Absent a Defense!)

Standard of Care

Negligence- doing something that a reasonably prudent person wouldn’t do or failure to do something a reasonably prudent person would do under similar circumstances to those shown by evidence

Ordinary or Reasonable Care- care which persons of ordinary prudence would use to avoid injury to themselves under similar circumst

Operationalizing the Duty to Act Responsibly

Emphasis on Foreseeability (Adams v Bullock)- (foreseeability + impossibility of taking precaution)

1. Was it foreseeable a boy would be swinging a wire and get electrocuted by an exposed wire?

2. Are the Necessary Precautions in place? – that injury was not foreseeable- the necessary precautions were in place for foreseeable injuries.

Substantial Risk (Bolton v Stone)- cricket ball flies over the fence and injures someone (28 yrs/6 balls over the fence/0 people injured until now)

Takes into account (1) Chance of Injury AND (2) Seriousness of Injury, but NOT the difficulty of remedial measures.

The Hand Formula (Carroll Towing)- Elements: B= burden (cost of precaution), P= Probability of Injury, L= Injury (magnitude of loss) [B= Negligence] (tool for appellant judges to use- too cold to present to judges)

Breach, whether or not failed to abide by a duty!

Reasonable Person Standard

The RPS is an objective standard, where a person’s conduct is measured against the reasonable, ordinary, prudent person (Person of avg. physicality, mental capacity, w/ knowledge equal to the avg. member of the community.

– In Torts it doesn’t matter some people are below average

– Strict Liability w/i reasonable person standard, because some people are below average and simply just can’t help it.

– External objective norms rather than subjective ability

Stratifying the Standard of Care [to act reasonably under the circumstances]

Heightened Duty of Care

Lessened Duty of Care

Unnecessary Acts

Physical Disability

Brown v Kendall- if fending off the dog with the stick was found to be unnecessary, Defendant would have to show that he exercised extraordinary duty of care to prevent injury to the plaintiff instead of ordinary care illustrated by the reasonable person standard

– if clear defect is shown a person will not be held to RPS

– Man on crutches – the victim can be expected to steer clear of collision with a person with a clear physical disability

– Easier to prove, less surprised by physical disabilities

– Emergency (blind man forced to drive a car) v choice (chose to get behind wheel- negligent)

Common Carriers + Innkeepers

Mental disability

– Required to exercise heightened degree of care to passengers and guests, RPS for others

– Adams v Bullock never mentioned common carrier standard- the kid was not a passenger- passengers pay and give trust to the transportation company when they board a vehicle

– Bethel v New York Transit drops the common carrier rule- because of increased technology; RPS is sufficient, RPS is so flexible that the heightened sense of care is inherent

– Used to be heightened and now moving towards RPS

– Court is much less interested in giving special standards to mental disabilities (less likely to be taken into account for defendant)

– Too variable, easy to fake, hard to prove

Clear Mental Disability– taken into account because potential victim is able to identify and steer clear.

– No special standard. (What would a RP do knowing they have epilepsy?)

– Complete blackout with no advanced warning- you are blameless

– Roberts v Ramsbottom- reasonable person, who is not unconscious, would have pulled over after they hit the first car.

Dangerous Instrumentalities

Age? [0→18→65?)

Wood v Groh

– Son breaks into cabinet and steals fathers gun

– Jury rules- Father needs to keep ammunition separately from gun in order to make sure that the son can’t use gun

– Parents aren’t typically held vicariously liable- but the fact that he had a child in the house forces a heightened duty of care

Age gives you foresight, more variability at high end of spectrum- kids universally lack judgment + experience

– Children required to conform to standard of children of like age, education, intelligence and experience

– Child engaging in adult behavior (driving) must conform to adult standard (Dellwo v Pearson)

Superior Attributes

[Emergencies]

– If you have special skills (Nascar driver- better driver) have a H.D.C to perform according to those skills

– Medical professionals are expected to do a better job than an average person giving CPR

Jury will not be instructed to special emergency doctrine because it is implied in reasonable person standard.

– Must act as a reasonable person would in the same emergency

Role of Judges and Juries

Dispositive Motions (no way a jury could reasonably find in favor of the other person, evidence is so clear in one direction)

1. Summary Judgment- judge grants if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law

2. Judgment as a Matter of Law- judge grants if there is no legally sufficient evidentiary basis for jury to find for non-movant

Jury- decides what a RP would do under the circumstances (fact finders-