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University of Pennsylvania School of Law
Perry, Stephen R.

Outline—TORTS (Perry)
I.          Introduction to Torts
A.       Prologue
1.     Torts action – in each situation, someone claims that another has caused harm and looks to the law for relief.
2.     Primary concern of torts law is whether or not compensation is required for harm done.
3.     Fundamental issue – when should losses be shifted from an injury victim to an injurer or some other source of compensation
B.       When Should Unintended Injury Result in Liability?
1.     Two court-fashioned liability principles – strict liability and negligence
2.     Hammontree v. Jenner (Ct. Appeals CA – 1971):                                   (p.3)
-Facts: Jenner (D) suffered seizure in ’52 and was diagnosed an epileptic. With medication seizures were brought under control. Had to report his condition to the Department of Motor Vehicles on a periodic basis. Since seizures were under control, was allowed to keep license. In ’67, suffered a seizure while driving, lost control of car, hit Hammontrees’ (Ps’) shop striking Mrs. Hammontree. Ps sued personal injury and property damage. Trial judge instructed jury on negligence rather than strict liability.
Question: In strict liability an appropriate theory for recovery when sudden illness renders an automobile driver unconscious?
-∏ wanted absolute liability jury instruction, for same reasons as in products liability cases: only ∆ knows of his condition and can protect.
Holding: No. Strict liability is an appropriate theory when products cause injury. The theory of negligence, however, is appropriate for auto accidents. Since D showed reasonable care to control his seizures, negligence not shown.
-No larger commercial enterprise with loss-spreading and implied warranty
-Legislature should handle it if such a change from negligence to strict liability in auto accidents is to be made.
3.     Strict liability – Liable for all harm whether it’s foreseeable or not (plaintiff wanted this std. in Hammontree). No fault involved.
4.     Negligence – Negligence is the failure to use ordinary or reasonable care; the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the circumstances similar to those shown by the evidence.
C.       The Litigation Process – When an injury occurs, the courts are available for the injured party to redress the injury. The injured party who seeks to recover is called the plaintiff. P will usually be seeking damages for injuries to person or property. The person who is sued for the injury is called the defendant.
1.     Evolution of a Lawsuit
a) Pretrial – Prior to the trial, both parties contract attorneys and try to settle the matter. If it cannot be settled, the issues must be litigated.
b) Trial – To initiate the trial, the injured party files a complaint. This complaint lists the bases for the cla

mployees while acting within the scope of their employment (scope is a question of act that must be submitted to jury unless the employee’s activity is so clearly within or outside the scope of employment that reasonable minds cannot differ. Then the court can decide the issue as a matter of law)
-Question: Under the doctrine of “respondeat superior,” could Burns be held liable for employee Swensen’s negligence?
-Holding: Yes. Acts falling within the scope of employment are those acts which are so closely connected with what the servant is employed to do and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objective of employment.
-Three Birkner criteria for determining if employee’s activity was within the scope of his employment: (must hit all three)
a.       the employee’s conduct must be of the kind the employee is hired to perform
b.      the employee’s conduct must occur substantially within the hours and spatial boundaries of employment.
c.       the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.