PROFESSOR STEPHEN PERRY
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL
A. Hammontree v. Jenner (Epileptic driver) – Liability presupposes controllability. Δ took precautions – taking medicine.
B. Vicarious Liability or Respondeat superior
1. If an employee commits a tort during the scope of his employment his employer will be jointly liable
2. Restatement Of Agency sets out 4 criteria: (1) Was the conduct of the general kind he was employed to do? (2) Was he in the spatial bounds of the job? (3) Was the conduct was motivated, at least in part, by serving the employer’s interest? (4) if force is intentionally used by servant, & use of force is not unexpectable by the master
3. General rule: Employers are not vicariously liable for independent contractors they hire. Broad exceptions
a. Non-delegable duties
b. Ostensible agency or apparent agency
i. Doctrine of ostensible agency:
1. Requires reasonable belief on part of plaintiff.
2. Requires reliance on that belief (would have behaved differently if she hadn’t believed that)
3. Requires representation that the independent contractor was an employee.
ii. Doctrine of apparent agency:
1. Requires reasonable belief on part of plaintiff
4. Christensen v. Swenson (Security guard in accident while getting sandwich)
a. Applies first 3 Restatement criteria & finds reasonable minds could differ on all 3.
5. Baptist Memorial Hospital System v. Sampson (Attending physician was an independent contractor)
a. Court applies doctrine of ostensible agency. Requirements not met so no liability.
II. The Negligence Principle
A. Elements (Π has burden of proof)
1. Duty of Care: Was that relationship such that Δ had to look out for interests of Π?
2. Standard of Care: What is required to discharge the duty?
3. Loss/harm: Has Π suffered an interference with an interest protected by the tort of negligenc
woman tripped over a kneeling mechanic in a store)
a. Δ not negligent. Δ was in plain sight & it was reasonable for him to assume that others would see him. Both parties had responsibility.
4. United States v. Carroll Towing Co. (Crew of Carroll were negligent in securing the Anna C, which loose & sank. If bargee had been aboard, he could have alerted other boats, & kept the barge afloat)
a. Damages reduced. It was a reasonable expectation that in the hustle & bustle things might not be done with adequate care. It was a fair requirement that the Anna C should have a bargee aboard during the working hours of daylight.
b. Learned Hand formula: Owner’s duty to provide against resulting injuries is function of 3 things: (1) The probability that the situation will occur (P), (2) The gravity of resulting injury if it does (L), (3) The burden of adequate precautions (B). If B