Select Page

University of Pennsylvania School of Law
Perry, Stephen R.

University of Pennsylvania Law School
Prof. Stephen Perry, Torts
Fall 2010                
I.                    INTRODUCTION
ELEMENTS of a negligence tort 
1A)          Duty of care: Based on the relationship btw parties. Does D have to look out for p? (Antecedent question)
                Misfeasance or nonfeasance?
1B)          Standard of care: What conduct discharges duty? What specifically should D have done to comply w/duty of care and avoid liability?
2)             Breach if one falls below standard of care
3A)          Causation: Prove D caused the harm—reality or scientifically based; “BUT FOR” test
3B)          Proximate Cause: Legal causeà Evaluation of the causal link by ct. Was it sufficiently direct?
4)             Harm: The harm/loss to a protected (“cognizable”) interest; sometimes expanded to include emotional and economic interests; legally cognizable injury
5)             Defenses: Contributory/Comparative negligence; Assumption of risk
Strict Liability vs. Negligence: SL in car accidents
Hammontree v. Jenner, CT APP CA (1971)
 [SL does not apply to drivers à Driver suddenly stricken by illness rendering him unconscious, liable for resultant injury based on principles of negligence] Facts: Epileptic suffered seizure while driving car and crashed through wall of shop, damages shop and injures shop owner.
Comments: Ct holds that to invoke SL on users of streets w/o establishing in subst’l details how rules should operate would only contribute to confusion to car accident problem à Settlmnt/claim adjstmnts would be chaotic until new rules worked out on case-by-case basis. Hardships of delayed compensation would be intensified
**Legislature is the only one who can avoid such difficulties by enacting plan for compensation for car accident victims in place of/in addition to, law of negligence.**
Fault v. Strict Liability: History/Theory
Weaver v. Ward (1616)
Facts: p claimed D shot him during military exercise. p only needed to show that D had shot him, triggering app of SL. D could not provide necessary defense. 
** Action in trespass (strict liability): p only had to show D had directly applied force to his person/goods. Burden of proof was on D to provide a defense.
Brown v. Kendall, SUP JUD CT MA (1850)
 [The p must prove, either that intention was unlawful or that D was at fault in order to recover à Burden of proof is with p] Facts:D accidentally hit p in eye w/stick as he was trying to separate their fighting dogs. Action brought in trespass for assault/battery.
Comments: p must prove negligence/fault to impose liability. “Ordinary care” is standard in uninten’l torts as long as action was lawful.
**Fault-based liability standard: Burden of proof was on p to prove breach of that duty.à Negligence standard is default rule
Bamford v. Turnley (1862)
Facts: D build kiln that spews smoke over p’s property. p = nuisance, D = public good.
Comments: While kiln creates public benefit, p must be compensated for personal loss out of resources created from social good.
**Absolute liability standard: Industry should bear its own costs to society, regardless of fault.
Vicarious Liabilityà When it’s difficult to find proper D and measure recoverable loss
1) Deaths of parties
-Recoveries in cases of death governed by statute b/c under early common law, death of p or D terminated the lawsuit.
-Death of p RARELY causes abatement of valid lawsuit
-“Survival” statutes allow estate of deceased to bring suit for any harm for which deceased could have sued for had he survived.
-“Wrongful death” statutes allow action to be brought on behalf of legally designated beneficiaries to recovery for pecuniary loss that death has caused.
Respondeat Superior
-Under this doctrine, employers are vicariously liable for torts committed by employees acting w/in scope of their employment. If reasonable minds could differ as to whether employee was “working,” it’s submitted to jury as a matter of fact. But if answer is so clearly one way or another, then court may decide issue as matter of law.
-3 justifications for employer vicarious liability: Gives employers incentive to: 1) shrewdly select employees and effectively supervise them; 2) discipline employees who have committed negligence and exposed employer to liability; and 3)consider alternative to using employees’ efforts (e.g. mechanization of particular tasks or reducing scale of employer’s activites) [Prof. Gary Schwartz] Christensen v. Swenson, SUP CT UT (1994)
 [SJ inappropriate when reasonable minds could differ as to whether D was acting w/in scope of her employment when accident occurred.] Facts: Woman’s employer was sued after employee hit motorcyclist w/her car while she was going to get lunch during a break.
Comments: Acts falling w/in scope of employment are those which are so closely connected w/what person is employed to do that they may be regarded as methods of carrying out the objectives of the employment.
3 criteria for determining whether employee is acting within or outside scope of employment[taken from Christensen] 1) Employee’s conduct must be of the general kind the employee is hired to perform
2) Employee’s conduct must occur substantially w/in hrs and spatial boundaries of the employment
3) Employee’s conduct must be motivated, at least in part, by purpose of serving employer’s interest
Apparent Agency
Roessler v Novak,  FL (2003)
Radiologist negligent in hospital;        D not an official employee but an independent contractor
Rule H may be held vicariously liable for acts of independent contractor physicians if latter acts with apparent authority of H;
Usually no vicarious liability for independent contractors.
Baptist Memorial v Sampson TX 1998
Explicit noice that certain doctors are not employees of hospital; nothing D_ did could have created reasonable belief that doctors were H agents
3 elements must be demonstrated by p to establish apparent agency [taken from Roessler] 1) Requires representation by purported principle (implicit or explicit)                                                                   
2) caused reliance by 3rd party on that representation (If would have done same thing anway, NO RELIANCE)
3) and that the change in position by 3rd party in reliance was detrimental.
Apparent agency: [Rest. (2d) Torts, §429]: If person has reasonable belief that there’s an employer-employee relationship, then there is apparent agency, and employer is subject to liability for harm caused by the independent contractor. This is REJECTED here, in favor of:
Ostensible agency: [Rest. (2d) Agency, §267]: A representation has to be made
Duty is obligation to take/refrain from taking some action
Misfeaseance – active misconduct that works positive injury on another
“Active misconduct that works positive injury to another” à engaging in actual activity that leads, in a causal sense, to injury [For the most part, forseeability is necessary and sufficient for establishing a duty]  
Nonfeasance – failure to take positive steps to prevent harm (should be no liability for pure nonfeasance)
“Wrongful failure to take positive steps to prevent harm from occurring” à “I did nothing.” Not doing anything not wrong in a legal sense but in a MORAL sense… e.g. not throwing a life preserver to a drowning person. [Much harder to find duty]  
-Must a pltff show a specific duty exists in a situation, or does general (“affirmative”) duty exist? à Long-term mvmnt to recognize general duty, but earlier cases required a specific relationship as basis for imposing a duty of care (e.g. innkeeper-guest; carrier-passenger)    
Palsgraf v. Long Island RR, CT APP NY (1928)
 [D owes duty of care only to those ps who are in the reasonably foreseeable zone of danger] Facts: p sued LIRR for injuries sustained when a package fell out of the hand of one of the train passengers as he tried to jump on the train. The package contained firecrackers that exploded on the rails, injuring p on platform.
Comments (Cardozo): Conduct of the RR employees was not negligent with respect to pà Every negligence case requires that D owed duty to p, and that D could have avoided the injury to p had he observed his duty.
-p must show a wrong to herself, not a wrong to anyone in the world.
**Cardozo’s opinion adhered to by majority of cts. (see also Wagon Mound No. 1 (limits liability based on forseeability) à Thus, we must ask not only whether p’s injury was proximately caused by D’s negligence, but also whether p was a foreseeable p to whom D owed a duty of care. **Negligence is not actionable unless it involves 1) invasion of legally protected interest, 2) the violation of a right, or 3) breach of duty [Since no duty, no issue here of proximate cause]  
Dissent (Andrews): Every p is a foreseeable p. Regardless of how far/near/unforeseeable, any individual is entitled to recover for his damages with resulted from D’s negligent conduct. Due care is a duty imposed on each member of society to protect others in society, not just to protect A, B or C. p has a right to be protected from unintentional invasion of bodily security by unreasonably hazardous conduct. 
**Andrew’s opinion adhered to in a minority of jxns. (see also Polemis) à “Direct cause theory”
**Duty is owed to public at large and there is liabil

W. v. Muroc Jt. Unified School. Dist., SUP CT CA (1997)
[Employer has duty to use reasonable care when recommending employee w/o disclosing material neg info that relates to fitness for job] Once D_ took duty upon self, D had duty to exercise reasonable care; New district relied on D_’s info, leading to harm to P
**Here, misrepresentation amounted to misfeasance**
AD: Duty to Control Conduct of THIRD PARTIES
Tarasoff v. Regents of Univ. of CA, SUP CT CA (1976)
[A therapist owes a legal duty not only to his patient but also to his patient’s would-be victim à Once therapist has determined that a patient poses serious danger of violence to others, he bears duty to exercise reasonable care to protect foreseeable victim] Facts: Murdered woman’s parents sued D therapist b/c failed to warn their daughter of death threats made towards her by a patient.
Comments: D asserts no special relationship btw dead daughter and therapist, but they do establish one btw killer and therapist. (Special relationship btw dr/patient). THAT special relationship may support affirmative duties for the benefit of 3Ps. Obviously, therapist can’t “perfectly” assess whether patient will become dangerous, so all he must do is exercise “reasonable degree of skill/knowledge/care ordinarily possessed/exercised by members of the professional specialty under similar circumstances.”
**Duty to control derives from duty to protect; Actor must have right/reasonable opp. to control; and the harm + identifiable victim must be reasonably foreseeable**
Rest (2d) Torts §315: Duty of care can arise from either: (a) special relation btw actor and 3P (person who will harm) which imposes a duty upon action to control 3Ps conduct , or (b) special relation btw actor and the other (person who WILL BE harmed) which gives rise to the other, a right of protection. Special relationships include:
Rest (2d) Torts §316: parent-child
Rest (2d) Torts §317: master-servant (employer-employee)
Rest (2d) Torts §318: possessor of land/chattels-user of land/chattels(possessor of land-invitee)
Rest (2d) Torts §319: persons in charge of people with dangerous propensities
Rest (2d) Torts §320: persons having custody of another who does not have normal power of self-protection     
AD: Duty Created by STATUTE
Uhr v. EGC School District, CT APP NY (1999)
[Ct imposes strict requirements for determining whether an implied right of action exists under statute.] Facts: Family sues school district when, in violation of state law (§905(1)), school failed to test daughter for scoliosis with result that her illness progressed undetected. But under §905(2), school is immune from civil liability resulting from making such an exam.
Comments: Violation of statute DID NOT provide for private right of tort action. But since it did not prohibit one, ct created 3-prong test to determine whether statute gives rise to private cause of action. Ct found 3rd prong not met b/c “legislative scheme” was to shield school from civil suits.
**ps are not suing D b/c failure to test was in violation of statute, equaling negligence per se (Martin v. Herzog). ps are saying that the §905 creates a new tort cause of action. In this case, absence the statute, there’s no way to assign liability to the school (no duty in nonfeasance cases). ps want to take the statute, adopt it into common law and use it as common law. In Herzog and other statute cases, parties would have been liable even without the statute. There, the duty of care already existed, and THEN we decide whether to adopt the statutory provisions. **could argue special relationship??
3 elements for statute to give rise to a private right of action [taken from Uhr] 1) Whether p was member of the class for whose benefit the statute was enacted