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University of Pennsylvania School of Law
Feldman, Eric A.

Torts – Feldman

Fall 2016


I. Hammontree v. Jenner

II. Vicarious Liability


I. Overview

II. Affirmative Obligations to Act

III. Intra-Family

IV. Policy Reasons for No Duty

V. Landowners

VI. Governmental Immunities

VII. Emotional Harm

VIII. Wrongful Birth

IX. Economic Harm


I. Standard of Care

II. Reasonable Person Standard

III. Role of Judge and Jury

IV. Customs

V. Statutes

VI. Proof: Circumstantial Evidence

VII. Medical Malpractice


I. Factual Causation

II. Multiple Parties

III. Proximate Cause


I. Contributory Negligence

II. Comparative Negligence

III. Assumption of Risk

IV. Pre-Emption

V. Statute of Limitations


I. Strict Liability

II. Product Liability

III. Manufacturing Defects

IV. Design Defects

V. Warning Defects

VI. Defenses

VII. Work-Related Injuries


I. Compensatory Damages

II. Punitive Damages


I. Hammontree v. Jenner (CA, 1971)

A. Facts: Epileptic driver had seizure and crashed into π’s store, injuring π and store. Δ was following doc’s orders and had no sign of oncoming seizure

B. Issue: Was Δ negligent or strictly liable?

C. Holding: Strict liability not applicable, Δ was not negligentànot liable

1. need to establish carelessness to hold liable

D. Holmes: let the harm lie where it falls unless fault can be identified

E. Posner: economic efficiency, don’t spend more to prevent accident than accident costs

1. hold people liable when cost of prevention is low

II. Vicarious Liability

A. Respondeat Superior

1. Employer liable for torts committed by employee within scope of employment

a. distinct from negligent hiring by employer

2. Policy Goals:

a. incentivize supervision/discipline

b. assure compensation to victims (insurance)

c. make work processes safe

3. Can only avoid by specific restrictive policies, not just “don’t be negligent”

4. Indemnity: liable employer can sue employee for damages but very rare

a. erases vicarious liability

b. expensive litigation

c. employee often can’t pay

d. insurance covers it

B. Employees

1. Christensen v. Swenson (UT, 1994)

a. Facts: Δ was guard, got in car accident on lunch break, injured π, sued guard and employer

b. Birkner Test: was π acting within scope of employment? (Need all 3)

i. conduct of type that employee is hired to perform

ii. conduct w/in spatial and temporal boundaries of employment

iii. conduct motivated by employer’s interest

c. Holding: reasonable minds could differàjury

2. Rest. of Agency § 7.07(2)

a. Employee acts within scope of employment when performing work assigned by the employer or engaging in behavior subject to employer’s control

b. Narrower standard than Birkner

C. Independent Contractors

1. Typically no vicarious liability for independent contractors. Exceptions:

a. Apparent Authority

b. Nondelegable duty

c. Rest. § 409/429: Employer not liable for Ind. K unless:

i. services accepted with reasonable belief that actor is employee

ii. actor’s negligence causes harm

2. Roessler v. Novak (FL, 2003) (“Sarasota Memorial Hospital”)

a. Facts: π went to hospital and was negligently treated by Ind. K radiologist

b. Issue: Is hospital vicariously liable for independent K doctor? yes

c. Test: Apparent Authority (need all 3)

i. Representation by principal of authority over agent

ii. Reliance on representation by third party

iii. Change in position/harm of third party in reliance

d. Concurrence: Nondelegable Duty theory

i. Employer liable for all basic duties, even if delegated to Ind. Ks

ii. Hold hospital liable for all acts by agents

iii. Policy: predictability, consistency, efficiency


I. Overview

A. General duty: no duty unless…

B. Policy: libertarianism

C. Typically question of lawàdetermined by court

1. Prefer to deny liability based on breach/causation/harm

II. Affirmative Obligations to Act

A. Special Relationship: Harper v. Herman (MN, 1993)

1. Facts: π jumped off Δ’s boat into shallow water, Δ did not warn, π injured

2. Holding: No duty because no special relationship

a. no special relationship, even though had superior knowledge

b. Δ did not actàno duty to act reasonably

3. Test: Rest. §314A: special relationships

a. common carriers, innkeepers, owners of land open to public, custodians

B. Undertaking/Voluntary Assumption: Farwell v. Keaton

1. Facts: π and Δ went out and were attacked, Δ helped π then left in driveway, π died

2. Holding: Duty because of common undertaking in going out together

a. common undertaking forms special relationship

b. Voluntary assumption of duty: Rest. §324

i. once you start helping, have duty to exercise reasonable care to secure person’s safety or not leave in worse position than when you found them

ii. no libertarian concerns

C. Voluntary Assumption: Randi W. v. Murdoc School District (CA, 1997)

1. Facts: Δ wrote letters of rec for employee who assaulted kids, employee hired and assaulted π

2. Holding: once Δ chose to write letter, had duty to fully inform

3. Test: Rest. §311: negligent misrepresentation

a. one who negligently gives false info is liable for physical harm caused by reasonable reliance on info when harm occurs to foreseeable class of third persons

4. Test: Ballard v. Uribe: duty when category of negligent conduct is likely to result in the kind of harm that occurred

D. Special Relationship: Tarasoff v. Regents of UC (CA, 1976)

1. Facts: patient disclosed intent to kill π to Δ, Δ did not warn π, patient killed π

2. Holding: Δ psychologist had duty to warn third-party π

a. once professional determines/should have determined by reasonable professional standards, that patient poses serious danger to others, has duty to protect foreseeable victims

3. Policy: benefits of confidentiality vs. risk to public

E. Reisner v. Regents of UC (CA, 1995)

1. Facts: patient given blood transfusion with HIV, doctor didn’t disclose over time, patient died and boyfriend who contracted HIV sued

2. Holding: Doctor has duties to third-parties for foreseeable harm

F. Statutory Duty: Uhr v. East Greenbush School District (NY, 1999)

1. Facts: statute required scoliosis tests, Δ did not comply, π’s scoliosis detected late

2. Holding: Test for statute creating duty

3. Sheehy Test: for private claim not stated w/in statut

b. knows/has reason to know of condition that posed risk of death/serious injury

c. kids do not know of risk

d. burden of eliminating danger is less than risk to kids

e. owner fails to exercise reasonable care to eliminate risk or protect kids

C. Heins v. Webster County (NE, 1996)

1. Facts: π visited Δ hospital to visit daughter and conduct business, fell on ice

2. Holding: Duty to all lawful visitors because risk was foreseeable

a. erased invitee/licensee distinctionàboth were present and could slip on ice

b. followed by about half states

3. Rowland v. Christian: owe duty to trespassers too, unless committing certain crimes

D. Posecai v. Walmart (LA, 1999)

1. Facts: π customer was mugged in parking lot, no security

2. Holding: No duty to protect from criminal acts by third party

3. Test: balance foreseeability of harm vs. burden of imposing duty

a. Not foreseeable: high crime area but no similar prior incidents

b. Klein v. 1500 Mass Ave.: landlord had duty to protect tenants from frequent crime in common area

VI. Governmental Immunities

A. Overview

1. Policy: government officials must balance costs/benefits of policy choices

2. Narrowed over time: still allowed in some discretionary functions

B. Police

1. Riss v. City of NY (NY, 1968)

a. Facts: π threatened by ex, requested protection, Δ denied, π attacked with lye

b. Holding: No duty for policy to protect

i. if Δ acted at allàduty to act reasonably

c. Policy: don’t want private citizens determining how policy allocate resources

i. specific duties can be established by legislatures

2. Schuster v. City of NY (NY, 1958)

a. Facts: Δ solicited help capturing criminal, π helped and was targeted

b. Holding: Duty because Δ actively solicited π’s involvement

3. Sorichetti v. City of NY (NY, 1978)

a. Facts: π child had protective order against father w/ history of violence

b. Holding: Duty undertaken by promising assistance and reliance on promise

4. Cuffy v. City of NY (NY, 1987)

a. Facts: family sought protection from neighbor, Δ promised to come but didn’t

b. Test: no duty of police protection unless: (all 4)

i. assumption of affirmative duty by municipality

ii. municipality knew that inaction could lead to harm

iii. direct contact between municipality’s agents and victim

iv. justifiable reliance on municipality’s undertaking

5. Valdez v. City of NY (NY, 2010)

a. Facts: π called Δ for help, Δ said they would arrest boyfriend, π shot 24hrs later

b. Holding: no duty because no justifiable reliance (Cuffy #4)

i. not justifiable to rely on policy for such a long time