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University of Pennsylvania School of Law
Austin, Regina

Torts – Professor Austin Fall 2011

· Elements of Negligence/Historical Negligence

o Brown v. Kendell – dogs fighting, using stick hits eye

§ Trespass vie et armis – direct application of force – inevitable accident

§ Trespass on the case – consequential harm or neglect duty

o Elements of Modern Negligence

§ Duty to use due care

§ Proof of breach of that duty

§ Cause in fact (but for substantial factor)

§ Proximate cause (foresight of harm)

§ Compensable harm

· Vicarious Liabilty

o Vicarious liability only if:

§ Apparent authority

§ Nondelegable duty

§ Dangerous activity

o Christensen v. Swenson – Guard getting food leaves post, SJ denied for D

§ Birkner test – scope of employment

· Employee must be about the employer’s business

· Conduct must occur within hours/spatial boundaries of work

· Conduct must be motivated in part by serving employer’s interest.

o Rosessler v. Novak – Dr. not employee/agent negligent scans, SJ denied for D

§ Apparent authority:

· A representation by purpoted principle

· A reliance on representation by third party

· A change in position in reliance

§ Apparent authority must be created by principle (objective standard)

· Duty of Care

o Adams v. Bullock – P kid playing with wire hit trolley line – D won

§ Must adopt all reasonable precautions – limited by foreseeable problems.

§ No special danger here – no previous accidents/all customs followed

o U.S. v. Caroll Towing – Boat broke free and crashed, P negligent as well

§ Hand Forumla – B < P x L – negligent

· P – probability of harm

· L – Gravity of injury

· B – Burden of adequate precautions

§ Problems with Hand

· Information costs

· Means of measurement

· Foreseeable

· Community standard (reasonable man)

· Reasonable Man

o Bethel v. N.Y. Transit Authority – Handicap seat broke, repair notice – not liable

§ Common carriers held to reasonable man not utmost care

o Subjective factors for reasonable man

§ Low I.Q. – no

§ Superior skill/intelligence – yes

§ Physical disability – yes (reasonable blind)

§ Mental/illness/insanity – no

§ Youth – partially subjective

· Adult activities – no

· Reasonable 5 year old + actual knowledge

§ Gender – probably not

§ Emergency – yes (majority), no (minority)

· Role of Judge & Jury

o Andrews v. United Airlines – briefcase hit P’s head on airplane, utmost care – liable

§ Juries introduce custom – damages/standard

§ Judges limit that power – motions/instructions/modify $

o Pokora v. Wabash Railroad ­ no bell/whistle car hit by train

§ Jury decides – standard not rule

o Baltimore v. Ohio Railroad – car hit crossing tracks – should have gotten out of car

§ No custom, judge made law (rule)

· Standard of Care

o Timarco v. Klein – fell through shower made of glass, standard was safety glass – liable

§ Custom may set standard for reasonable care

o Martin v. Herzon – P hit D who didn’t have car lights on – against law

§ Statutory law creates duty of car, jury can’t substitute

o Telda v. Ellman – walking wrong side of road to avoid traffic

§ Compliance involved greater risk

§ Ask question – what is the purpose of the statute

§ Doesn’t matter if compliance is customarily broken

o Limitations (Exceptions) of Negligence Per Se

§ Incapacity

§ Emergency

§ Inability to compile after reasonable care

§ Compliance involves greater risk

§ Unawareness of occasion for compliance

o Applications of Negligence Per Se

§ Negligence per se (statutory purpose)

§ Negligence Per Se with exceptions

§ Negligence per Se as evidence of negligence

· Constructive Notice

o Nergi v. Stop & Shop – baby food jars, 50 minutes & dirty – notice

o Gordon v. American Muesum of National History – wax paper on steps – no notice

§ No evidence specific paper there for more than a couple seconds.

o Rule – Defect must be

§ Visible and apparent

§ There for sufficient time to permit D to discover and remedy it

· Res Ipsa Locquitar

o Byrne v. Boalle – barrel fell and hit D

§ Possession (control), responsibility for employers of barrel

§ Barrels don’t fall without negligence = prima facie case

o McDoughlad v. Perry – tire fell off car and hit P, did pretrip inspection

§ R.I.L. – does the thing usually happen in absence of negligence

§ Don’t need to eliminate all other causes

· Whether reasonable person say negligence more likely than not.

· Medical Malpractice


. Wilson – P injured in car accident by grandnephew of D who gave funding for car even though nephew had no license/abuser of drugs

§ Supplier of chattel knows or has reason to know because of his youth, inexperience, or otherwise, to use it in a manner reasonable risk of physical harm to himself and others.

§ Don’t need to own or control – funding is enough.

· Premise Liability

o Posecai v. Walmart – P robbed by third party on D’s property

§ Act must be foreseeable to require duty, 4 appraoches to foreseeable

· Specific harm rule – not liable unless aware of specific, imminent harm

o (Too narrow)

· Prior similar incidents test- past conduct puts owner on notice

o (Arbitrary)

· Totality of circumstances – all factors into consideration

o (Too broad)

· Balancing test – foreseeabiliity of harm against burden (B

o A.W. v. Lancaster School – guy walking into elementary school, sexually assaults kid

§ Duty – requires foreseeable, unreasonable risk plus public policy –question of law

§ Breach – requires failure to respond to duty – question of fact

o Carter v. Kinney – Bible study, slipped on ice broke leg – licensee

§ 3 classes of premise liability

· Trespassers – everyone till permission

o Duty = no duty

· Licensees – Permission given to be on land

o Duty = warn of known dangers

· Invitees – Invitor gives permission to general public or receives material benefit

o Duty = reasonable care to protect against known dangers and those that would be found with inspection.

o Heins v. Webster – P visiting daughter who worked at hospital – gets rid of classes, using reasonable care

§ Licenses/invitees get same duty – reasonable care

§ Factors:

· Foreseeability of injury

· Purpose on property

· Time/manner/circumstances that injured party entered property

· Use of premise

· Reasonableness of repair, warning, inspection