Select Page

University of Kentucky School of Law
Cardi, W. Jonathan

Goals of Tort Law: 1 rule of law (consistency, predictability, order); 2 accident prevention; 3 wealth redistribution; 4 social insurance (spread cost); 5 retribution; 6 restore victim to whole; 7 efficiency; 8 fairness; 9 wealth maximization
Negligence: 1 D had a duty; 2 D breached duty; 3 breach was cause of Õ’s injuries; 4 damages to Õ occurred
SJ: 1 there must be no material, disputed facts; 2 judge must say judgment is appropriate as a matter of law (no reasonable jury could find any other way, there is no dispute)
Prima Facie: Assuming all of Õ’s allegations are true, they satisfy each element of the cause of action [I.e. for negligence].
Strict Liability: brings more lawsuits overall; makes admin. costs of the particular case less b/c Õ doesn’t have to prove negligence.
-intent-actor desires to cause consequences of his act, or he believes the consequences are substantially certain to result from it. (as opposed to negligence-actor creates risk)
-contributory negligence/recklessness are not defenses.
-wilful and malicious injury awards cannot be discharged in bankruptcy.
*Jury questions are always questions of law. The jury must then apply the facts to that law.
I.          Intro to Tort Liability
            A.        When Should Unintended Injury Result in Liability?
#          Hammontree v. Jenner (1971). D driver rendered unconscious and caused injuries to Õ. Court held strict liability cannot be applied to such drivers. Õ must prove negligence.
            ^If D made a living driving and the social benefits of such outweighed the small likelihood of injury, should D be held liable? Law and economics. Posner’s theory that society’s wealth should be increased under all circumstances.
            B.        The Parties and Vicarious Liability.
-vicarious liability-holding one person liable for another person’s negligence. ex. respondeat superior-employers are responsible for their employees’ actions. Goals: 2, 3, 6.
#          Christensen v. Swenson (1994). D was on a paid break from her job as a security guard and caused injuries to Õ. Court held juries could find D was acting in the scope of her employment (or not), so the issue must go to a jury. SJ is not appropriate.
            ^An employer is subject to liability for intended tortious harm by its employees through acts done in connection with employees’ employment even if employer does not authorize the act, if the act was not unexpectable in view of the duties of the employee. ^Employers can sue employees for $ they have to pay out for employees’ negligence but rarely do. ^Employers must screen employees who will work w/ the public.
            ^Birkner factors whether employer should be held liable: (1) employee’s conduct must be of the general kind the employee is hired to perf

use when deciding whether D’s behavior was negligent?
#          Adams v. Bullock (1919). Õ swung wire while walking over D’s trolley lines; wire came into contact w/ trolley lines and burned Õ. Court held D was not liable b/c D was operating his business lawfully (and according to the custom) and the accident was not foreseeable. *There was not an unreasonable risk to Õ. D could have taken some major precaution to prevent the injury, but the cost would be too high.
            Courts weigh the foreseeability of the risk v. the burden of guarding against the risk.
            ^Shopper hurt when she tripped over mechanic who was knelt down fixing something in the store. Court held Õ did not prove negligence just b/c mechanic did not warn her. Mechanic acted reasonably.
#          U.S. v. Carroll Towing (1947). Workers caused a boat to break loose, hitting an unmanned barge. The barge was completely destroyed. Court held the barge owner’s recoverable damages were to be reduced b/c the barge was unmanned, and it would have cost little to man the barge. Learned Hand formula: whether duty is breached is decided by B