Select Page

University of Pennsylvania School of Law
Perry, Stephen R.

I. Introduction
When Should Unintended Injury Result in Liability?
·         Tension between two court-fashioned liability principles:
1.Strict/Absolute liability: imposed when harm was foreseeable, even if was no breach in duty of care; also causation, product must be proximate cause of harm
·         Product liability cases: Idea is loss spreading; commercial D is better able to spread the loss by charging more for products, increasing loss thinly over society = rationale for strict standard
2. Negligence: duty of care: Doing something which reasonably prudent person would not do or failure to do something that reasonably prudent person would
Hammontree v. Jenner
D with epilepsy crashes. P wants strict liability, saying its like products liability, since D (like manufacturers) is in the best position to know about the risk and foresee the hazards. Ct. says no because no negligence. Strict Liability should apply to products liability where the company has the ability to absorb the costs.
) Viacarious Liability
·         Plaintiffs:
-Infant born alive can sue through legal guardian for harm suffered before birth
-Survival Statutes: P’s estate can sue for damages P could have sued for up to    
 the point of death (not for death itself)
-Wrongful Death Statutes: Next of kin can bring action on behalf of deceased;  
 damages determined from point of view of next of kin rather than deceased   
 (ex. loss of companionship)
·         Vicarious liability (respondeat superior): employer is vicariously liable for the negligence of agent or employee acting w/in scope of agency or employment, though employer didn’t personally commit a wrong
o        Employers have strong incentive to shrewdly select and supervise employees
o        Gives employers incentive to discipline negligent employees
o        Employer incentive to consider alternatives to employee efforts (mechanization
Christensen v. Swenson
Security guard crashes on way to lunch. Is employer liable? (court ruled reasonable minds could disagree). Court invoked Birkner Test:
Employees conduct must fall within the “scope of employment”—1) must be the general conduct for which employee was hired to perform; 2) conduct must occur within the hours and spatial boundaeries of employment; 3) conduct must be motivated by purpose serving the employer’s interest.
Rosseler v. Novak
Was hospital liable for contract Dr.s? Generally, No. But if there is Apparent Agency, A principal may be held liable if 3 criteria present: 1.) representation by principal; 2.) reliance on that representation by a third party; 3.) change in position by the third party in reliance on that repr

ozo, NYS 1919): Kid hitting trolley wires was totally unpredictable and unforeseeable, so D not liable Using trolley was legal and the wall was good vigilance and the reasonable standard of care. “Reasonable care in the use of a destructive agency imports a high degree of vigilance, but no bigilance, however alert unless fortified by the gift of prophecy, could have predicted” the accident.
Reasonable ness Test: no prior incident, no custom ignored, no facility to Protection
Braun v. Buffalo (NYS 1911) D strung electrical wires over vacant lot. The insulation eroded and exposed the wires, so that when construction on the lot began, a carpenter was killed by contact with the exposed wires…Was D liable?…Yes, since the injury was foreseeable, and quite possible, so D should have anticipated the possibility of construction on the lot. 
U.S. v. Carroll Towing (L. Hand): Boat breaks away from dock. Negligence Standard: Duty to provide against resulting injuries is a function of (1) probability (2) gravity of the harm (3) the burden of adequate precautions. If Burden