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University of North Carolina School of Law
Saver, Richard S.

Torts—Richard Saver—Fall 2016
I. Introduction to Tort Liability
A. Prologue
What is a tort? A civil wrong that does not involve a dispute over a contract.
Four elements: Duty, Breach, Causation, Damages.
Primary concern of torts: should someone whose actions have caused harm to another be required to pay compensation (if they have in fact caused the harm)?
Goals of torts: deterrence from unreasonable behavior, compensation for victim, redress of social grievances, setting standards of conduct, loss-spreading, corrective justice. Often in conflict.
Politics of torts: populist (likes plaintiffs and their lawyers), conservative (pro-business and efficiency, wants less suits), and social democrat (want better insurance, basically).
Policy note: Torts suits are common partly because not everyone is insured for medical care needed after an accident (although this is changing).
Prima facie negligence: “on its face” negligence, or “well I can’t say for sure but it definitely looks like this is negligence.”
B. When Should Unintentional Injury Result in Liability?
Three Types of Torts
Strict Liability: plaintiff can recover even if defendant acted with reasonable care (only applied to certain defendants, like manufacturers).
Negligence: plaintiff can recover if defendant didn’t act with reasonable care (most common).
Intentional: defendant harmed plaintiff on purpose (overlaps with criminal actions).
Hammontree v. Jenner (1971): Court found that epileptic def (who had driven car into plaint’s bike shop during a fit, causing personal and property damage) was not negligent because he had used reasonable care by taking meds, seeing doctor, complying with the DMV, etc. Court also found that an individual driver, unlike a car manufacturer, cannot be held strictly liable.
Policy note: Courts want to discourage reckless behavior, but not excessive cautiousness that would be more of a burden than the risk of relevant accident. Cost-benefit analysis (Posner).
What if neither party did wrong? Let the losses fall where they may.
C. Litigation Process, the Parties and Vicarious Liability
How to decide plaintiff?
Direct victim of tort
Parent sues on behalf of minor child
Family, next-of-kin, administrator (for no will), or executor (for yes will) can sue on behalf of decedent for:
Survival: for what victim suffered between tort and death.
Wrongful death: for continued economic support of decedent’s family.
How to decide defendant?
The tortfeasor
Vicarious liability: when you can sue someone who has a certain legal relationship (often employer, sometimes parent) to the tortfeasor, as well as the tortfeasor. Respondeat superior is for employer/employee.
Birkner criteria: vicarious liability for employer/employee relationship applies when (a) employee’s behavior was of general kind they were hired to perform, (b) behavior must occur substantially within hours/spatial boundaries of the employment, and (c) employee’s contact must at least be partly motivated by serving employer’s interest. 
Christensen v. Swenson (1994): Uses Birkner test, which is from Utah, but most states have something similar. Plaint/tortfeasor hit someone with her car on very brief (by company’s design) lunch break. Reasonable minds could disagree about whether any/all of factors were met, so court remanded it for jury trial.
Employee/independent contractor distinction: first is usually vicariously liable, second usually not.
How to decide one from the other? Ask how much right the boss has to control how the workers go about their business. Also, how long does the arrangement last, who covers the business expenses, and how do parties view the relationship? Et cetera.
Exception to no liability for IC: when work is inherently dangerous.
Policy note: Vicarious liability is supposed to encourage companies to make safe choices regarding their employees (both in selecting them and in creating a workplace environment). Also, companies are usually richer than people, so suing them helps victims more and doesn’t hurt them as much.
II. The Negligence Principle
A.  Historical Development of Fault Liability
You are not liable for injuring someone in a lawful act if reasonable care is used. Brown v. Kendall (1850) (dog fight, defendant hit plaintiff with stick accidently while trying to stop it. (Overturned from lower court decision saying def had to use “extraordinary care.” Not a thing.)
B.  The Central Concept
If RC is used, you’re not liable for a related chance injury. Adams v. Bullock (1919) (careless boy hitting trolley wire with stick).
It’s the Hand Formula! Probability of bad thing plus gravity of bad thing weighed against burden of preventing bad thing. US v. Carroll Towing Co (1947). (Dude left boat alone after somebody else had secured it to the dock improperly, destroyed US Navy ship and its supplies.
Alternative: Lord Reid. Just probability plus gravity.
The Reasonable Person: cautious, not a freak about it…but RP never errs. Objective standard.
With kids (usually 7-14), defendant is compared to reasonable child of their age, ability, intelligence, and experience, unless kid is doing something adult like driving a car or using a gun. A combined subjective/objective standard. (Under 7, you probably can’t be found negligent—you’re so little that nobody should trust you to act reasonably in the first place. Between 14 and 18, you might be treated more like an adult but it depends on the circumstances.) (Parents can be sued for improper supervision, using Reasonable Parent standard.) NC: child compared against another child of their a

easonable Doctor: judged by standards of profession.  Sometimes expert witness is needed.
Expert Witness: Any doctor familiar with the relevant procedure is qualified to be an expert witness; doesn’t have to be super-similar to defendant doctor. Sheeley v. Memorial Hospital (1998) (plaintiff had given birth and was negligently injured by family practitioner doctor in process allegedly—wanted to use OB/GYN doc with more experience as expert witness.)
Concerns: what if a defendant physician doesn’t have the same resources as the expert witness? Might lead to physicians with limited resources being able to do very little for fear of being sued.
Complying with standards isn’t enough to avoid liability as a doc; you have to use reasonable prudence as well. Helling v. Carey (1974). CONTROVERSIAL. Burden of glaucoma testing in this case might’ve been more than the court decided compared to its usefulness.
Informed Consent: Matthies v. Mastromonaco (1999): For consent to be informed, doc must tell patient about all medically reasonable options, even ones he doesn’t like, using Reasonable Patient Standard.
What must physician disclose to patient? All material risks (not super-remote ones) that are relevant to the reasonable patient.
Alternative: Reasonable Physician Standard.
NC Law, a Hybrid: (1) physician must be acting “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities,” (2) “[a] reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities,” and (3) [a] reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.”
You can’t sue over informed consent unless you were actually harmed.