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Torts
University of Pennsylvania School of Law
Perry, Stephen R.

Stephen Perry Torts
Fall 2009
 
Theory & History………………………………………………………………………………………………………………………………….. 1
Vicarious Liability………………………………………………………………………………………………………………………………… 2
The Central Concept……………………………………………………………………………………………………………………………… 2
The Standard of Care Breach = failure to act as a reasonable person would…………………………………………………. 2
The Reasonable Person: The “reasonable person” sets the standard of care; the jury defines it……………………. 3
Role of Custom: If there is a general custom, jury must decide if custom is reasonable. Can raise (but not lower) std of care………………………………………………………………………………………………………………………………………… 4
Role of Statutes: Violation of statute not neg per se: Harm must be of kind s. meant to prevent, π must be in class protected………………………………………………………………………………………………………………………………………….. 4
Proof of Negligence……………………………………………………………………………………………………………………………… 5
Res Ipsa Loquitor……………………………………………………………………………………………………………………………… 5
Medical Malpractice: Special (consensual) relationship; Implicit undertaking to provide services meeting certain SOC…………………………………………………………………………………………………………………………………………………………… 6
Informed Consent…………………………………………………………………………………………………………………………….. 7
The Duty Requirement: Physical Injuries…………………………………………………………………………………………………. 7
Affirmative Obligations to Act………………………………………………………………………………………………………………. 8
Exceptions to General Rule of No Duty of Affirmative Action: L. for nonfeasance……………………………………… 8
Creating the Peril, Negligently or Innocently………………………………………………………………………………………… 8
Special Relationships: Creates Duty to Aid, Protect, and/or Rescue………………………………………………………… 8
Undertaking to Act and Reliance………………………………………………………………………………………………………… 8
Duty to Control and Protect: Third-party conduct, predicated on special relationship……………………………….. 9
Negligent Entrustment: Only where ∆ has right to control the instrumentality causing πs harm………………….. 9
Policy Bases for Invoking No Duty………………………………………………………………………………………………………. 11
The Duties of Landowners & Occupiers………………………………………………………………………………………………… 11
The Duty Requirement: Nonphysical Harm……………………………………………………………………………………………. 12
Economic Harm………………………………………………………………………………………………………………………………….. 14
Wrongful Birth & Wrongful Life………………………………………………………………………………………………………….. 14
Causation…………………………………………………………………………………………………………………………………………… 14
1a. General……………………………………………………………………………………………………………………………………… 14
1b. Causal Uncertainty…………………………………………………………………………………………………………………….. 15
1c. Lost Chance Doctrine…………………………………………………………………………………………………………………. 15
1d. Multiple Defendants………………………………………………………………………………………………………………….. 15
1e. The Indeterminate Plaintiff…………………………………………………………………………………………………………. 15
2. Proximate Cause (After CIF is established)…………………………………………………………………………………….. 15
2b. Superseding Causes……………………………………………………………………………………………………………………. 16
2c. Unexpected Victim, aka Foreseeable Plaintiff……………………………………………………………………………….. 16
Defenses……………………………………………………………………………………………………………………………………………. 16
Intentional Harm………………………………………………………………………………………………………………………………… 18
Defenses to Intentional Harms……………………………………………………………………………………………………………… 18
 
Theory & History
Relational
Weinrib – moral theory of negligence, Kant, and Aristotle.
Cordozo – forseeability, although willing to limit for PP reasons, e.g. Moch. Creates foreseeability of π test as part of duty analysis, limits liability. Important distinction because duty is something the judge (not jury) can decide; jury decides proximate cause.
Holmes – forseeability, against social insurance.  Man needn’t do this or that act, but must act somehow. High L → inaction, socially inefficient
No duty to rescue: Austin command theory of law, sanctions from sovereign = law. Would support imposing duty to rescue rather than rely on altruism? Vs. law should embody moral values, and encourage positive beneficial action
Hand – BPL test to establish negligence threshold. 
Epstein – libertarian for SL – process orientated. You have morally wrong me, you should pay.  
Instrumental
Calabresi – market deterrence – SL for enterprises – loss spreading – prices should reflect true costs to the society. 
Gregory – trend toward fault principle increased difficulty of recovery;
Coase – efficiency and assault on causality; problem is of reciprocal nature. Think no-fault insurance. 
Posner – law & econ – utilitarian, efficiency maximizing – result orientated. 
Coase – reciprocal nature of the harms – both parties are causing damage. Coase assumes very low transaction costs.
Hammontree v. Jenner (1971 CA) – Seizure AA, Q: In sudden illness, is SL proper st&ard? SL – liab not depending of neg, but based on a duty to make something safe. Not applied in this case.   Neg applies in AA; Driver is not a large commercial enterprise. 
Bamford v. Turnley (UK 1862) – Kiln built next to doc’s house; utilitarian view – business should pay costs of activity; if in pub gd, can comp for proceeds; if not, then must. Ct held for P; D should pay P for costs of his action. 
Vicarious Liability
Christensen v. Swenson(UT 1994)– D in AA with P on lunch break; Ct applies Birkner test: 1. Generally what employee hired to perform, 2. Substantially in hour & place of emp, 3. Conduct motivated in part by serving employer. ITC, reversed & remanded. Employer doesn’t have been negligent; doctrine of respondeat superior. VI is efficient b/c makes employers keep employees safe.
Roessler v. Novak (FL 2003) – generally, no VL when there’s a indy contractor. Exceptions: non-delegable duties, & apparent agency, 3 part test for AAgency: representation, reliance, change of position (detrimental harm). Concurrence: Xrays should be NDD.
RSS 429 on ApAg- must be a “reasonable belief,” much easier test to meet. Also, see exceptions RSS 415 & 416 – duty to supervise contractors on land held open to public is NDD, & NDD if work that IC hired to perform is dangerous requiring special precautions.
The Central Concept
Negligence is conduct falling below the standard of care that a reasonable person would demonstrate under similar circumstances. 
Overview of Elements of Negligence- (1) Duty of care- legally recognized relationship bt parties that obligates D to act (or refrain from acting) in a certain manner toward P, (2) Breach of duty- the conduct that fails to satisfy standard of care, (3) Loss or injury to the P, (4) Actual causation- “but for” cause of harm & (5) Proximate cause- legal cause. RSS 3rd Torts: Liability for Physical Harm § 6 cmt. b: the five elements of a prima facie case for negligence. The first element, duty, is a question of law for the court to determine, although the court’s decision about duty might require the jury to resolve predicate factual disputes upon which a determination of duty rests. Ordinarily, an actor whose conduct creates risks of physical harm to others has a duty to exercise reasonable care. Except in unusual categories of cases in which courts have developed no-duty rules, an actor’s duty to exercise reasonable care does not require attention from the court. This Section also contains the four elements of a prima facie claim for negligence for the factfinder: (1) failure to exercise reasonable care; (2) factual cause; (3) physical harm; & (4) harm within the scope of liability (which historically has been called “proximate cause”).
The Standard of Care Breach = failure to act as a reasonable person would
Evolution of the Fault Standard
Brown v. Kendall (MA 1850) – Man putting down dog fight hits another in the eye; action was lawful; cs sent back to tr. Ct. – pt. is that fault must be demonstrated, neg or intentional, to constitute a cause of action. “Ordinary care” is the standard when action is unintentional & lawful. Two ways around: unlawful or intentional.   Shows shift away from trespass. No liability when lawful actions are performed in a reasonable and proper manner.  
Weaver v. Ward – (UK 1616) – man crossing fire range, ct. holds no liab for an inevitable accident. Perry’s point: inevitability as a defense allowed negl in through the back door b/c some actions were preventable.
Reynolds v. Clarke (UK 1726) – D was responsible for log causing AA in the highway, under doctrine of trespass on the case. 
 
Forseeability
~Adams v. Bullock (NY 1919) – Trolley line electrocution; neg or SL?  Held for D; no liab. Cordozo’s opinion is that every reasonable precaution was taken; trolley lines were not insulatable, no custom of swingins wires, no precedent.    (Holmes: liab should only be held for foreseeable accidents). PP, can’t stifle industry, by having SL. 
~Braun v. Buffalo(NY 1911) –danger of uninsulated wires was foreseeable in a busy city, so D liable for failure to take precaution.
Greene v. Sibley (NY 1931)  – customer slips on kneeling mechanic; no liab b/c beyond ordinary precaution, common act in plain sight
 
The H& Formula For Establishing Negligence
US v. Carroll Towing (1947) – Boats collide in harbor after P leaves unattended; H& sets out neg theory – Prob of inj

– P cut hand on dumbwaiter, ct held that if P could show customary use of smooth rope was to prevent such injuries, then evidence of custom was admissible. Garthe v. Ruppert (NY 1934) – P slipped on wet brewery floor, P sought to show that one brewery had tech for keeping flr dry, ct held that ev was inadmissiblebecause one or two examples does not set the custom of the trade.  
Role of Statutes: Violation of statute not neg per se: Harm must be of kind s. meant to prevent, π must be in class protected
Restatement § 286: Function of legislation –Violation of criminal S. determines civil liability only if ct adopts it as standard of care.  
Restatement § 288A: Excused violations – (1) excused violation is not neg, (2) unless stat doesn’t permit such excuse, vio excused when (a) incapacity, (b) ignorance, (c) inability after reasonable diligence, (d) emergency not due to own misconduct, (e) compliance would increase risk of harm to actor or others. 
Restatement § 874A: Tort Liability For Violation Of Legislative Provision – Court may find a civil action in tort may lie when D acts in a way prohibited by law against P. Rational: reasonable people are law-abiding.
Ø Judge decides this, because they’re more familiar w/statutes than are juries. Helps jury, since they don’t have to det SOC, only whether statute was violated. Criticism: Crim vio. might be a fine, but might lead to huge damages in civil suits
v [!] Martin v. Herzog (NY 1920) – STAT – Cardozo. D has lights off, AA. Failure to obey statute (lights requirement) is negligence per se. S dictates std of diligence for organized society, we’re under duty to conform. 
v Clinkscales v. Carver (CA 1943) – NO STAT – D runs stop sign, stop sign not authorized; ct holds doesn’t matter. Violation of statute is merely persuasive, court should decide the civil standard for establishing negligence
v Tedla v. Ellman – (NY 1939) – STAT h RISK – two peds walking against traffic; held for P, no C.Neg even though violated stat; stat can be std. of care except when 1) does not dictate, but simply codifies common practice, and 2) increases the risk it seeks to avert  
When no Capacity to Follow Statute:
v Bassey v. Mistrough (1982 NY) – car stops; lights go out; hit in rear; held for P, vio of stat excused if lacking capacity.
When Violation of the Statute is Customary
v Robinson v. DC (1990 DC) – CUSTOM v. STAT – P hit by police van while J-walking; custom doesn’t excuse liability
When Harm is outside of Purpose of Statute
v Platz v. City of Cohoes (1882) – STAT PURPOSE – Buggy hits danger in road while violating stat against Sunday driving; ct. holds that stat designed to promote order not safety. Rl: stat is ev of neg only when harm is type intended to be prevented. 
o [!] Gorris v. Scott (1874 UK) – Disease prevent act not meant to prevent sheep going overbrd; stat vio not neg b/c this was not the kind of harm the stat was designed to protect against, not relevant to determining negligence
v Rushink v. Gerstheimer (1981 NY) – key in ignition; P (mental patient) steals car, dies in AA. P can proceed only under common law neg theory b/c harm meant to prevent was unauth use of cars and drivers of those cars were intended to be protected by statute.
v DiPonzio v. Riordan (1997 NY) – car ignition on at gas station rolls into guy; ct rules that stat was meant to prevent fires, not AA.
De Haen v. Rockwood Sprinkler (1932 NY) – radiator falls down hole on construction site; vio of stat is neg when harm derives of secondary purpose of stat (things v. people) falling. Leg intent was preventing hazards, type of hzd to be determined by experience.
 
LICENSINGª Brown v. Shyne (1926 NY) – chiroprctr hurt patient using treatment only licensed phys could perform; ct held D to standard of physician, but not to inform jury of no license. CPLR §4504d (later): Practicing med w/o license prima facie ev of neg.
 
COMPLIANCE [!] Edwards v. Basel Phamaceuticals (1997 OK) – smoker dies of nic-induced hrt atck while smkng & wrng 2 nic ptches. D said comply w/ FDA warning req’s is a defense. Ct held that reqs a min: must be adequate to warn consumer of possible dangers. Deciding that duty is governed by the common law of state, not FDA regs. Reg’s are floor, not ceiling except as in Geier.
Hubbard-Hall Chemical v. Silverman (1965 1st) – 2 migrant frm workers killed by contact w/ insecticide; Dept. of Ag found warning lables confirmed to Cong reqs; did not elim liab; jury could reasonably find neg b/c warning insuff (no skull&bones, just English).
~ Alvarado v. J.C. Penney (1990 hKS)– P burned, nightgown burned b/c of open gas heater; D claimed compl with KS Prdct Liab Act; court found “compliance with regulatory standard was not conclusive.”