Select Page

University of Pennsylvania School of Law
Perry, Stephen R.

Fall 2010
Professor Perry
Tort: A civil wrong, other than breach of contract, committed by one person towards another for which a remedy may be obtained in the form of damages; a breach of a duty of that the law imposes on persons who stand in a particular relation to one another.
Tort law has a primary concern of whether one whose actions harm another should be required to pay compensation for the harm done. Fundamental issue is when losses should be shifted from an injury victim to an injurer or some other source of compensation.
Earliest forms of Tort law
Trespass – harm to one’s land, property or person caused by direct and immediate force. Trespass by vay et armus. Intent is irrelevant to action (in this way trespass like strict liability)
Trespass on the Case – harm not caused by direct and immediate force. P has to establish something like negligence. Grew-out of Trespass, but easier to sue since P doesn’t have to show direct force. P has to show physical harm and that D was at fault (causation)
General ambiguities:
I.    Allowing for individuals to act and not be faulted for harms that may result means that society may progress. Allowing for all fault would have a chilling effect
II.   The creation of rules of conduct means that if they are followed, they will bring about the cost-justified level of accidents and safety
III. Degrees of Negligence: Traditionally, there is no variation in negligence – either a reasonable standard of care was met or it was not. However, in cases where there are limitations to liability, those limitations may be surmounted if the breach was “reckless” or “willful and wanton
IV.Burden of Proof
a.     Generally P has the burden of proof b/c he brings the claim
b.    The standard of proof varies from state to state “preponderance of the evidence” (51% rule) “beyond a reasonable doubt”
1.     Equipoise – exactly 50/50 so party w/ burden of proof loses
Survival Action: Estate of P can recover for any relief the dead was entitled to at the point of their death
Wrongful Death Action: Hybrid Action, Liability is determined from POV of decedent. Damages are suffered by next of kin and determined economically.
Background on Negligence Principle: Until 19th century tort could only be brought under form of action with a procedure that controlled substance:
I.     Earliest form to bring claims under: Trespass (intentional harm) and Case (negligence with fault requirement)
II.    Direct and immediate force required- Not much difference between tort and crime
III.   Liability was strict (could have been absolute)- Intent did not matter
Industrial Revolution: Companies win more suits because hard to prove they are at fault for injured workers
Bramwell (Judge in Bamford)
·         If something is truly for the public good, the benefits to the public outweigh the costs (promotes net utilitarianism)
·         If the defendant’s profits are enough to compensate the plaintiff for his loss, he should do so. If not, then what the defendant has done is not for the public benefit
·         Unilateral causation—whoever was the author of the misfortune, should bear the loss
·         Need strict liability because regardless of reasonableness, whoever makes the choice to act should bear costs
·         Industry should pay less for injuries and torts to leave more money for business
·         In his decision, he views tort law as a rights based legal area
·         Forseeability, although willing to limit for PP reasons
Calabresi – “Some Thoughts on Risk Distribution and the Law of Torts”
·         Strict liability best standard for producers b/c industries should pass along costs s.t. consumers bear the costs of their actives. It’s important that prices of good reflect their true cost, so that consumers make fully informed decisions. Businesses should bear their losses b/c injury is a cost of the activity
·         Strict liability good for loss-spreading. Better for many to bear small loss than one bear all. Possible thru:
o    Social insurance
o    Private insurance (but eventually riskiest person bears full loss)
o    Enterprise liability (place on those most likely to spread losses to consumers and who engender costs in 1st place).
o    Allocation of resources justification: among several parties engaged in an enterprise, the loss should be placed on that party which causes the burden. In theory it doesn’t matter where you put the cost (since it’s passed along) but in reality it does. Ex: In car accident, the driver and the pedestrian, rather than the manufacturer engaged in acts that caused accident, so from incentives perspective it’s better to put the burden on then.
·         Uilitarian- Puts a lot of weight on causation
·         Like Bramwell and Epstein with complication: When we have two activities interacting, how can we be sure with which activity the true “cost” lies?
Epstein – Intentional Harm
·         No negligence if overall expected benefit > overall expected cost.
·         Divergent treatment where D has taken reasonable (but unsuccessful) steps to avoid harming P. Under negligence, D is not held liable.
·         Strict Liability is fairer. Strict liability says that D should not be allowed to force others to bear his costs because prior to the accident he made a decision that was rational in the case. As a matter of fairness, D should be required to treat the harms which he has inflicted upon another as though they were inflicted upon himself. But P should bear costs his act forces on another
·         Criticizes Learned Hand formula because it lets D off from paying costs from activity that benefits him. This creates an economic interpretation of tort law even though it should be about equitable justice
Epstein – A Theory of Strict Liability
·         Ames argued for this good Samaritan rule:
o    One who, at little cost to himself, failed to save another from impending death of great bodily harm shall be punished criminally and shall compensate injured parties.
·         Once the law decide that an individual is required under some circumstances to act at his own cost for the exclusive benefit of another, then it become very hard to set the limits of social interference with individual liberty.
·         Law of torts defines the bound of individual freedom at the point where the individual causes harm to another.
Holmes – The Common Law
3 theories of liability for unintentional harm:
1.     Austin: Criminalist approach- have to have state of mind of advertently negligent. Criminal intent requires some kind of guilty mind. The equivalent in negligence terms is personal fault. Negligence means the state of the party’s mind.
2.     Libertarian: Intent doesn’t matter. If one man’s actions cause harm to another, “the party whose voluntary conduct has caused the damage should suffer.” Strict liability standard
3.     Holmes: An act requires an element of choice. If you have no way of avoiding a behavior, you should not be liable for its result. Liability requires the ability to know i.e.: Is the harm foreseeable?
·         Defends the negligence standard (critiques the use of absolute and strict liability standards- unfair as matter of basic justice and morality)
·         Using mere causation, and not foreseeability or due care, as the standard means you could constantly drive to find people liable for any harm done in society in an unlimited chain of causation
o    Foreseeability ought to be a condition for liability b/c impossible to have actless people, cannot penalize people for acting
Coase – “The Problem of Social Costs”
·         If optimum allocation of resources is to be attained, both parties should take the harmful effect into account in deciding on their course of action. The fall of production due to the harmful effect would be a cost for both parties.
·         In effect, the legal decision doesn’t matter. No matter what happens, the two parties will bargain their way to an economically efficient result
o    Bargaining might fail when it costs too much to engage in the transaction
o    The courts should allocate liability to maximize economic efficiency (if bargaining costs are too high, since the parties can bargain among themselves if the costs of bargaining are not prohibitive).
o    Can’t rely on causation alone to determine liability
·         In the absence of transaction costs, trade in an externality will lead to an efficient outcome regardless of the initial allocation of property rights. BUT allocation of surplus will depend upon property rights. Ex: Confectioner buys entitlement from Doctor
·         In case of injury, both parties can be said to have caused the accident.
o    Multilateral understanding of causation
o    Bryant v. Lefever (chimney and smoke)
o    Counter to libertarian activity/passivity distinction
·         If transaction costs are too high (as in most tort situations) the court should try to achieve the result that would have occurred had bargaining occurred. à Put entitlement in hands of party who values it most, or use standard of liability that would achieve Coasian result.
·         P chooses which precautions will be analyzed in Court and D shows if they were too expensive
Coleman – The Practice of Principle
·         Torts has certain structure that fits with rights based corrective justice view more than a rules view.
·         Economics Analysis: Correct liability rules are those that lead to the optimal reduction in the cost of accidents (forward-looking)
o    Those able to best reduce risk of accident identified before
·         Tort law: Core structure is case-by-case adju

false representation
Roessler v. Novak (24): D misread x-rays and misdiagnosed P at Sarasota hospital
·         Holding: Hospital liable because did not explain that D was independent contractor or give P choice between independent contractors therefore implicit representation
·         Test for Apparent Agency:
1.     Representation by the purported principal (most important criteria that court look at)
2.     Reliance by the third party
3.     A change in position by the third party in reliance
o    P doesn’t prove reliance. Would need to show he would have behaved differently if had a choice
·         Dissent: Argues for non-delegable duties approach under some circumstances, whereby principals are always liable for negligence by independent contractors in certain special tasks
o    Acting within the time and location of the job
o    Employers would have to be more carful in hiring
Strict Liability: automatic responsibility (without having to prove negligence) for damages analogous to the doctrine of res ipsa loquitur in which control, ownership and damages are sufficient to hold the owner liable. Based on an absolute duty to duty make something safe
Strict Liability (causing foreseeable harm) versus Absolute Liability (strictly causing harm) versus Res Ipsa Loquitur (“the thing speaks for itself”)
Strict Liability v. Negligence
Products Liability as an example to promote strict liability:
·         Asymmetry on knowledge: person committing the act may be the only person aware of the risk (foreseeable)
·         Companies eg insurance co., manufactures, can afford to bear the burden
·         Loss liability: Customers will spread their loss among customers by increasing prices
o    Decrease marginal utility
·         Can spread cost among past and future
·         In the West, more apparent depend on core concept of causation
Hammontree v. Jenner(3): D got into accident when had epileptic seizure while driving
·         Claims: P tries to draw on analogy to product liability to say D automatically liable
·         Holding: D not liable for auto wreck b/c he wasn’t negligent in driving w/ doctor’s approval
·         Rule: When determining liability in cases of auto accidents, D cannot be found liable under doctrine of strict liability.
·         Policy: No strict liability in auto cases; loss lies where it falls. This is not the same as product liability – companies can absorb losses better. Additional policy considerations: Imposing strict liability would create uncertainty for automobile cases (make matters complicated). Additionally, D had no reason to anticipate seizure. Negligence remains the best standard in car accidents
Bamford v. Turnley (SM): Nuisance action because brick factory that spewed smoke over P’s property
·         Holding: Factory held liable for smoke
·         Policy: Standard of absolute liability, holding industry to bear all of its costs to society. D should not get to keep fruits of his labor without having to bear any costs
·         Point: More utilitarian definition of public interest. Good for public that factory continues to operate
Learned Hand Formula
Chicago v. Krayenbuhl ( ): Child injured on railroad
·         Holding: Lock is so cheap that it should be used
·         Policy: Public good demands that they buy lock, too cheap not to protect the public from the potential hazard (precursor to Learned Hand formula)
U.S. v. Carroll Towing (44): D readjusted lines holding P’s barge and it floated away, sank US cargo. US can sue P for damages, but P suing D for contributory negligence
·         Holding: D is liable because burden didn’t outweigh PL. Owner negligence in not having bargee aboard a barge that broke away and sunk a ship.
·         Rule: B>PL = Burden of Precaution
Policy: Creates incentive for lowest cost avoider to be responsible for precaution. Difficult to apply in real