I. Intro. to Tort Liability—Tort is a civil wrong, Tort liability is a redress for civil wrong, not contract or crime. The wrong is based on negligence.
A. When Should Unintended Injury Result in Liability
1. Could have no liability system
a) The P’s need/want compensation for dmgs
b) The D’s should pay for harm they cause
c) We want to deter negligent acts
2. Hammontree v. Jenner p 3 CA 1971 (crashes in shop)
a) Strict liability is like product liability
b) Negligent liability is the reasonable standard of care.
3. Unreasonable risk,
a) The causer can foresee the risk of danger
b) The injured cannot foresee the risk
4. Holmes and action, Action is good we want to encourage action
B. The Litigation Process
1. Court system, District, appellate, supreme, fed, and state.
2. appeals only consider the questions of law, the facts are always decided by the jury.
3. Summary Judgment is as a matter of law (the facts segued for the other side) there is no case.
4. jury instructions are the law, as the judge sees it, that apply to the situation as should be applied to the case at hand.
5. Tort law is mostly common law.
C. The Parties and Vicarious Liability (respondeat superior)
1. Christensen v. Swenson p18 UT 1994 (Geneva case)
a) “the employee’s conduct must be of the general kind the employee is hired to perform”
b) “the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment”
c) “the employee’s conduct must be motivated at least in part, by the purpose of serving the employer’s interest”
2. regardless of employer’s negligence if the employee is acting under the three principles above the employer is strictly liable for the tort. This gives employers incentive to hire and supervise reasonably.
3. employer can be neg. in hiring.
4. employer can be neg. as well.
5. Multiple P’s—efficiency for the system
6. Multiple D’s
II. The Negligence Principle
A. Elements of a Neg. act
1. Duty to injured
2. breach of that duty
3. Causation—the breach of duty caused the injury
4. Injury resulting from breach of duty
B. Historical Development
1. industrial revolution brought about the tort reform, machines were dangerous
a) A man hits you
oof is not the P not the D.
g) The act was not prohibited by law, acts are good (Holmes)
h) P and D have equal obligation for ordinary care.
6. Note 4 p37
a) Benefit of Strict Liability is the one who creates the risk can pay for the damage, they can rise prices to compensate for there losses in court.
b) Fault and non fault (negligence liability)
(1) Cost/benefit analysis, want cost effective actions, (cost includes accidents)
(2) We want all parties to be careful in action
(3) Judicial subsidy to entrepreneurs and investors
C. The central concept
1. Standard of Conduct, Reasonable Care, AKA ordinary, Due Prudence
a) Adams v. Bullock (NY 1919) p38 Trolley lines and kid with wire.
(1) Reasonable care–“Duty to adopt all reasonable precautions to minimize the resulting perils”
(2) Reasonable care with the knowledge of the agency–“Reasonable care in the use of a destructive agency imports a high degree of vigilance”