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University of Pennsylvania School of Law
Austin, Regina

TORTS: Regina Austin; Fall 2012


• Deterrence

• Compensation/loss spreading

• Morality/particular notions of moral blameworthiness and responsibility to others

• Cultural or social norms

• Practical politics

• Judicial administration


• RESPONDEAT SUPERIOR: Liable for torts committed by employees acting within scope of employment.

○ Policies: Prevent future injuries; assure victim compensation (company has deeper pockets); spread losses equally caused by enterprise; incentivize employers to supervise well; justice is social notion of workplace (workers comp).

○ Christenson v. Swenson: Swenson in auto accident returning from lunch. Holding: Found liability; used Birkner test.

• Trips Home to Work: Not within scope. Work to Home: Courts divided.

• Frolic/Detour: Within scope if foreseeable.

• Forbidden Act: Within scope if done in furtherance of employment.

• Personal Motives: Not liable.

• BIRKNER TEST: Employee action must be:

○ General kind the employee is hired to do.

○ Occur substantially within the hours and spatial boundaries of employment.

○ Motivated by a purpose of serving employer’s interest.

• INDEPENDENT CONTRACTORS: No VL for negligence of IC EXCEPT when:

• Employer gives IC apparent authority to act on its behalf.

• Employer hired IC to undertake a nondelegable duty (where patient can’t shop on open market).

• Employer hired IC to perform an inherently dangerous activity.

○ APPARENT AUTHORITY: Authority a principal knowingly tolerates or permits or holds the agent as possessing:

• Representation by the purported principle.

• Reliance on that representation.

• Change in position by relying on that representation.

NEGLIGENCE: Failure to use due care or act as a reasonable person would in the circumstances.

• DUTY to use due care.

• BREACH of that duty.

• CAUSE IN FACT (but for or substantial factor)

• PROXIMATE CAUSE (foresight of the kind of harm and to the P)

• Compensable DAMAGES


• RULES: Gives judges more power because they require less fact-finding.

○ Advantages: Uniformity, precision, neutrality, efficiency, order, exactingness, stability, security.

○ Disadvantages: Rigidity, conformity, indifference, stinginess.

• STANDARDS: Give more control to fact finder.

○ Advantages: Flexibility, creativity, spontaneity, equity, evolution, generosity, progress, prevent bad customs from continuing.

○ Disadvantages: Bias, sloppiness, uncertainty, sentimentality, chaos.


○ When all juries have been finding the same way — no reasonable person could differ on the outcome.

○ When juries are all over the place (sign of confusion) — step in to maintain consistency.

• Baltimore & Ohio RR v. Goodman (Holmes): Judge should issue directed verdict because standard of conduct is a question of law.

• Pokora v. Wabash RR (Cardozo): Std. of conduct is usually judgement for the jury. If reasonable minds can differ –> jury.

○ Andrews v. United: Bag fell on passenger. Holding: Must go to jury because reasonable minds could differ as to whether airline took reasonable precaution. Reasonable minds conclude airline should do more to warn passengers.

(1) DUTY: Foreseeable, unreasonable risk PLUS public policy.

• GENERAL RULE: Everyone has a duty to use due care.

○ Narrow (Cardozo) View: Duty owed to foreseeable P or people in zone of danger (Palsgraf)

○ Broad (Andrews) View: Anyone injured as a proximate result of negligent conduct; becomes a proximate cause inquiry.

• DUE CARE: Degree of care a reasonably prudent person would use under the same or similar circumstances.

• REASONABLY PRUDENT PERSON: Responds to foreseeable, unreasonable risks.


○ Flexible Standard (BPL) + Res Ipsa Loquitur

○ Community Expectations

○ Statutes

○ Professional Custom


• FLEXIBLE STANDARD: Duty of care exists when the burden of due care is less than the probability of injury times the liability if the accident occurred. B = BURDEN of taking the precaution; P = PROBABILITY that a loss will occur; L = magnitude of the LOSS.

○ TEST FOR BPL: (1) What did D do? (2) How was it dangerous? (3) Did D know or reasonably should know about the danger? (4) Are safer alternatives available? (5) D knew or reasonably should know about reasonable alternative.

○ Carroll Towing: Absent a reasonable excuse, the barge owner’s failure to take reasonable steps to prevent unreasonable risk of the barge breaking away was negligent.

• Information/Error Cost: Obtaining reliable information is extremely difficult.

• Problem of Incommensurability: What is the value of a finger? No common metric.

○ Adams v. Bullock: There was no reasonable fix. Since too cost-prohibitive, no fix warranted.


• Foreseeability: If injury is foreseeable, there is liability.

• Community Expectations: Best way to handle the competing values of economic efficiency and social welfare.

• COMMUNITY EXPECTATIONS: Social understandings and norms as a guide to what is in society’s best interests.

○ Central Tenet: Reasonably prudent person conforms to the prevailing expectations in the community about consideration for the safety of others. Jury should decide in accord with community expectations.

○ Gilles: Best way to handle the competing values of economic efficiency and social welfare.


○ STATUTORY PURPOSE RULE: P within the class of persons, injury within class of injuries, the statute was designed to protect.

○ NEGLIGENCE PER SE: Unexcused violation of statute is negligence per se. BUT: compliance does not relieve D of negligence; jury can conclude reasonable person would have taken precaution beyond those required by statute.


• Incapacity (actor is a minor unable to comply with standard of care).

• Lack of Knowledge (driver tail light goes out while driving and before opportunity to discover).

• Inability to Comply (blizzard makes it impossible to comply with statute requiring RR to keep fences clear of snow).

• Emergency (driver swerves across center line to avoid child in street).

• Compliance poses a greater risk than violation. See Telda: Walking on wrong side of the highway because traffic heavy on correct side. Compliance with statute would pose a greater danger than that which it was designed to protect.

○ CONTRIBUTORY NEGLIGENCE: D can use negligence per se to establish contributory negligence by P.

• Martin v. Herzog: P struck by D’s car. D was traveling on opposite side of the street; P was driving without lights in violation of statute. Holding: P is contributorily negligent.

• PROFESSIONAL CUSTOM: Can show the general expectation of society; what is reasonable.

○ REJECTED: Except in malpractice, custom is rejected as a standard of care. But useful in evaluation.


• Was the actual custom reasonable?

• If conduct adhered to custom: Was it reasonable to adhere to the custom?

• If conduct departed from custom: Was the departure reasonable?

○ Trimarco v. Klein: P fell through shower door; custom to use thicker glass. Holding: When proof of a customary practice is coupled with a showing that it was ignored and it was the proximate cause of the accident; a party can be held liable.


• Whole industry does it one way, court may not believe P’s claim that there is a safer way.

• Fact that reasonable alternative is not in use suggests D’s industry was unaware of alternative.

• Custom that involves large fixed costs warns court of social impact of decision that the custom was unreasonable.

(2) BREACH OF DUTY: P has burden of proving D’s conduct fell below standard of care.

○ Constructive Notice: Defect was (1) visible and apparent; (2) existed for a sufficient length of time; (3) D did not r

s a duty to save another from impending death or harm when it can be done with little/no risk to self.


○ UNDERTAKINGS (intervention): You must act with reasonable care and leave the person no worse off.

• Must exercise reasonable care to secure the safety of the other while in charge.

• Cannot discontinue aid or protection if it will leave the victim worse off than they were found.

• Farwell: D took charge of the situation. Left victim in car while severely injured; should have taken victim to the hospital.

○ CAUSE OF RISK OR INJURY: This is true even if D acted without fault.

• Maldonado: P fell overboard when a train jerked during boarding. Suffered serious injury. D employees knew about injury but did nothing to help him. The court held for P.

○ STATUTES: If a statute creates duty, D is liable for violation if there is an implied right of action.

• Private Right of Action: Statutory commands do not necessarily carry a right of enforcement by means of tort law.

• Uhr: Law requiring scoliosis testing. School did not test; student had scoliosis.

• Is P of the class for whose benefit the statute was enacted?

• Would recognition of a private right promote legislative purpose?

• Would permitting the right be consistent with the legislative scheme?

• NO: The statute also wanted to limit the cost to the schools.

• Why not override with common law? It would override the legislature.

○ RELIANCE: If an injured party expects protection and they rely on the alleged duty, there is a special relationship.

• Morgan: Sheriff promised to warn P before releasing threatening ex-boyfriend; failed to warn and he murdered her. Holding: D is liable since P relied on the promise and would have acted differently sans promise.


• When D entrusts a dangerous instrument to a person whom they know/should know would operate it negligently.

• Vince: D knew other D had drug problems and no license; let them drive. Both are liable.

○ There is a SPECIAL RELATIONSHIP between the parties.

• Harper: Special relationships exist between persons who have custody of another under circumstances in which that person is deprived of normal opportunities to protect himself. In the absence of a duty to provide protection, superior knowledge of a dangerous condition in itself is insufficient to establish liability.

• EXAMPLE: Innkeepers to guests, employers to employees, parents to children, spouses, friends to companions, manufacturers to customers, custodians to vulnerable or dependent persons, landlord to tenant, school to student.

• The fact that someone realizes/should realize that an action on his part is necessary for another’s aid or protection does not impose a duty unless a special relationship exists. Harper.

• Farwell: Parties were companions on a social venture. Implies D will help P if in peril and helping will not endanger himself. Courts will find a duty where reasonable men recognize it and agree that it exists.

• Tarasoff: Duty of care can also arise form a special relation between the actor and the third party which imposes a duty upon the actor to control the third party’s conduct. Can support affirmative duty to protect third party.