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University of Pennsylvania School of Law
Feldman, Eric A.

Fall 2014
4 elements of negligence: Duty, breach, causation, damages. (did Feldman give you 4 or 5 elements?) If you write a negligence answer, must talk about all 4. Give a paragraph for each one. Write about each of these elements, even if they’re not all in dispute. If an element isn’t in dispute, you can just say “because XXXX fact, damages are not in dispute, damages are apparent.” And let that be that.
Each element picks up where the last element left off and tells a continuous story. So where you leave off writing about duty, make sure it flows into your writing about breach, and then that your writing about breach becomes your writing about causation, and so on.
use negligence in 2 ways: 1) capital N (as a tort), 2) lower case N
duty, breach, cause, damages
Does D owe P any DOC? ß first place we look to determine if this is a big N (a tort)
Then we need to show the breach of duty. Then show relationship causally between breach of duty and injury. Inaction can also be cause. Also omission/commission.
Cause = if you would have had stroke right now even if I didn’t hit you, then I didn’t cause your stroke.
**Know costs and benefits of imposing a duty in each situation.
Try to keep all of your materials in order…see the forest, not the trees.
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 selec

ervant or employee; filed motion for summary J – not liable for acts bc he was not employee or agent
o   Holding: Sarasota Memorial did not satisfy burden to establish that no genuine issues of material fact existed regarding its vicarious liability, thereby entitling it to SJ as a matter of law. Overturns TC granting of SJ.
§  SM has independent contractor structure – SM contracted with SMH Radiology Associates, with which Dr. L affiliated – agreement expects that vicarious liability will not be attached to client; NO LIABILITY unless physicians act w/ apparent authority of hospital then hospital can be vicariously liable. AA: (1. representation by purported principal; 2. reliance on that rep. by 3rd party; 3. change in position by 3rd party in reliance on rep.)
·         Restatement 429: Focuses on reasonable belief of 3rd party: would R 3rd party believe rely on belief of affiliation?; – “reasonable belief that services are being rendered by the employer or by his servants”-Stricter standard than “appearance of an agency relationship”; which means that there is affiliation/agency but not perhaps that Employer is the Equivalent to the servant
·         Rossler rule is preferable
·         Consequence of fuzziness: courts leave jury to go either way
II. The Negligence Principle
*NOTE: negligence assessment = was there duty? Breach? Cause-in-fact? Proximate cause?
1. NEGLIGENCE: Historical Development, Standard of Care : Breach of Reasonable Standard of Care is Negligence; Duty à Breach of Duty à Proximate Cause
f.       Historical Background:
                                                              i.      English Common Law—No negligence principles, just “trespass”
                                                            ii.      No real way to recover for accidental, unintentional injury except by filing a writ of “trespass on the case.”  (Prof Gregory – thinking for it evident 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.