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University of Pennsylvania School of Law
Feldman, Eric A.

Torts Outline  
Goals of Tort Law
a.             Compensation
b.            Fairness
c.             Minimize Administrative Costs
d.            Risk spreading
e.            Deterrence
Issues to Consider in Approaching Problems
a.             Duty of care: based on relationship between parties
b.            Standard of care: what conduct discharges the duty?
c.             Loss: the harm to a protected interest
d.            Actual causation (cause in fact – “but for”)
e.            Proximate cause: i.e. legal cause
f.             Defenses: contributory/comparative negligence and assumption of risk
1.                   Introduction (1 – 17 Casebook)
a.        The fundamental issue addressed by a system of tort liability for unintended injury is when losses should be shifted from an injury victim to an insurer or some other source of compensation
                                                               i.      Options 
1.       No tort system- “no liability” losses are simply allowed to remain where they fall (Hammontree is an example of loss being left where it falls)- no judicial involvement
2.       Social Insurance System- provides full compensation in every instance of harm—would not require any judicial involvement
3.       Both of these extreme options seem unfair, and the second one seems unlikely due to limited resources
4.       Feldman : Have to employ our VALUES: fairness, social justice, allocation cost of accidents; often becomes a value judgment
5.       instead, we have a sort of intermediary system          
a.        complex network of liability rules for determining the allocation of losses in unintended harm
b.       Constant tension at the poles of the intermediate system- strict liability vs. negligence
1.strict liability- liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe
1.       strict liability seems unfair- it is no more justifiable to make a person who acted with reasonably prudent care, who could not have foreseen the harm, or reasonably prevented it to pay for harm than it is to make the victim pay for the harm
2.negligence – Failure to exercise standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below est legal standard to protect others against unreasonable risk of harm, except for conduct that intentionally, wantonly, or willfully disregardful of others; rights; 2. A tort grounded in this failure, usu expressed I terms of the following elements: Duty, Breach of Duty, Causation, and Damages
o    Hammontree v. Jenner (CA Court of Appeals 1971) : SL v. Negligence; Core accident case à The liability of a driver suddenly stricken by an illness rendering him unconscious for injury resulting from an accident rests on principles of NEGLIGENCE. (look at duties of MD, DMV)
•         Facts: π injured, and store ruined when Δ smashed into store because he became unconscious during an epileptic seizure. He knew he was epileptic, so did the motor vehicle dept. but doctor sd it was ok for him to drive (on meds)…
o    Π: 3 claims: SJ, directed verdict, prejudicial error in not directing jury on strict liability: both other claims in 3rd claim:  says lower court erred in instructing on negligence…wants BV
o    Holding: upheld jury verdict for Δ…No strict liability- case rests on negligence; if SL, then does not matter whether or not he was careless. So, question becomes one of carelessness.
§ Analogy not compelling: Strict liability is in products because there they put defective stuff into hands of consumers [developed here bc of SOCIETAL CHANGE – live in a society w/ more industry and more production] § To invoke SL on users of streets (like do for makers of products who put them into stream of commerce) without establishing in substantial detail how the rule should operate would only contribute to the confusion of the automobile accident problem; Judge worries about future consequences of SL – collect from anyone who has a role in the accident; so just imposes normal carelessness standard.
§ Tension in how to apportion costs of accidents
·         On degree of fault one is responsible for – Negligence
·         Or on taking care of HARM – Strict Liability
§ Only the legislature, if it deems it wise, can avoid such difficulties by enacting a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence.
§ Insurance regulatory scheme: makes case for SL; know insurance co can pay
o    OW Holmes: Cause of harm not enough to establish strict liability; there are reasons that explicate causing harm that are out of control of ∆; Requirement of an act is the requirement that the ∆ should have made a choice; IF no choice, then any act that set into motion harm would be blamed on ∆.; State could make itself a mutual insurance company against accidents and distribute burdens ; State interference as an evil
§ “Cause of accident should lie where it falls” : falls here on Hammontree, so if no choice, he should absorb cost.
§ Extreme view: we have exceptions bc we expect society to act w/ care
§ Universal interest to take care of this
2.                   Vicarious Liability (17- 30 Casebook) [Feldman: look at idea even if not explicit in materials] a.        Definition: When ,if ever, we think it appropriate to impose liability on someone who has not in fact done anything wrong. (Ex: employer-employee)
                                                               i.      Feldman: No fault concept but idea that employer should pay anyway; Employer blameless in terms of fault/carelessness
                                                              ii.       Gary Schwartz – economic justifications for VL
1.        Strong incentive to shrewdly select employees
2.        Incentive to discipline those who have committed negligence
3.       Incentive to consider alternatives to employee efforts (machines)
                                                            iii.      All states have in some way; does not mean is right – controversial
b.       Loss of Consortium: loss of husband or wife’s companionship
c.        Corporations held liable for torts of employees – “respondeat superior”
d.       NOTE on Indemnification (compensation for loss): happens more often in cases w/ independent contractors than w/ employees.
e.       Employers suing employees? Technically possible but does not happen bc:
                                                               i.      Employees have no $$; ii. Employers have interest (torts of employees are expected cost of business); iii. Notions of FAIRNESS and Individual responsibility
•         Christensen v. Swenson, et al (including her employer) (Utah 1994)Birkner test; Restatement Test for agent; No automatic VL – question as to whether in scope of employment (usual case)
o    Facts: Swenson- employee sec guard. Drives to get food on her lunch break, gets in accident. 
o    Can the employer be granted summary judgment, or can they be held vicariously liable?
o    Holding: no sum judgment for ∆ Burns, security guard co, who says she was NOT acting in scope of employment…reasonable minds may differ as to whether

dent in trespass)
                                                            iii.      Very difficult to recover, had to fit within strict provisions, injury had to be immediate result of another’s act.
                                                            iv.      More evidence for negligence than strict liability; only strict liability in cases w/ animals.
1.       Debate – Schwartz: Argues that Brits used more of a negligence than SL standard to impose costs of fault.
                                                              v.      Before 1850 in US: only isolated cases that refer to liability based on negligence; then new machines of Industrial Revolution à harms, injury and death that prompted need for liability based on negligence.
b.       FAULT – not inevitable or natural that we look at this – creation of common law system
•         Brown v. Kendall (Mass 1860) SHAW– INTRODUCES Idea of FAULT/Negligence. Before this –no way to recover for accidental, unintentional injury. NOW, TORTS rise and fall on ability of P to show that D acted carelessly. If D careful à no fault. If D careless à FAULT. (Replaces old rule where burden on D to show EC or lack of P care)
o    Facts: Dogs fighting, breaking them apart, ∆ hit π in the eye with a stick.
o    Holding: If ∆’s act of hitting π was unintentional (it was VOLUNTARY but unintentional), done in the process of doing a legal act, and done in the exercise of ordinary care, then ∆ is not liable. Burden of proof is on π to show any of these factors.
§ Π             ∆              Winner
§ OC           OC           ∆
§ Not OC   OC           ∆
§ OC           Not OC   π
§ Not OC  Not OC   ∆
o    Threw out trial court’s analysis of the necessity of ∆’s act; OLD RULE – –   If Jury believed act of interference was unnecessary (not a duty incumbent on ∆) then ∆ has burden of proving his extraordinary care or want of ordinary care on behalf of π .
§ Old Rule: equate to Engl law C of Action of trespass (writs); Crimes toward ppl like property
§ Justice Shaw Changes: 1. Gets rid of necessary/discretionary distinction; 2. Gets rid of ordinary/extraordinary care distinction; 3. B/P on π always/
o    IMPORTANCE: Introduces idea of FAULT. If ∆ acted carefully à No Fault; if he acted carelessly à FAULT. Solidifies idea that tort claims rise and fall based on ability of π to show that ∆ acted carelessly.
§ At historic moment, solidified centrality of principle of negligence. In case of accidental harm, courts will look thru a lens of responsibility and cost.
§ Immigrant nation, many legal BGs, what do to apportion accident costs
§ Shaw does not make it seem radical but it is; CREATES idea here (some ref to Mr. Greenleaf)
c.        Standard of Care – What do tort mean by ordinary care/reasonableness?
•         Adams v. Bullock (NY Court of Appeals 1919) [J. Cardozo] – No duty if harm not foreseeable in light of utility of conduct. “P” in the B