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University of Pennsylvania School of Law
Perry, Stephen R.

Torts. Perry. Fall 2006. Let’s get it on.

Standards of Liability/Introduction

-Elements of a Tort
-Duty of Care
-Standard of Care
-Cause in Fact
-Proximate Cause

Strict Liability vs. Negligence (Fault-Based) Standard

Hammontree v. Jenner
California, 1971.
-defendant had epileptic seizure while driving
-plaintiff urges strict liability standard
-court declines to superimpose product liability strict liability standard
-defendant did everything asked of him by the state, so he was not negligent
-judgment for defendant upheld

Vicarious Liability

Christensen v. Swenson
Utah, 1994
-three-part test for vicarious liability
-test for vicarious liability: (1) acting on the employer’s business, not solely personal business, (2) acting within the time and location of the job, and (3) acting so as to serve the employer’s interest, at the time of the damages
-employee was going to get lunch and got in a car accident
-summary judgment was not appropriate because there were issues of fact on all three points

Roessler v. Novak
Florida, 2003
-should doctor’s negligence cause vicarious liability on the part of the hospital?
-doctor was an independent contractor, but acted with apparent agency
-apparent agency consists of (1) representation by principal, (2) reliance by P, (3) change in P’s position due to that reliance
-hospital is liable

The Negligence Principle

Brown v. Kendall
Massachusetts, 1850.
-defendant, while trying to break up a fight between dogs, reared back to beat them with a stick, accidentally hitting plaintiff
-standard of ordinary care
-judgment for defendant

Weaver v. Ward
England, 1616.
-soldier accidentally shoots another soldier
-defense of inevitable accident
-case decided D

Bamford v. Turnley
England, 1862.
-use of kiln by defendant annoyed the plaintiff due to the smoke
-defendant argues that kiln represents public good
-analogy: if you’d be willing to burn down your own forest by running a train through it, you should have to pay the owner of the forest if it’s your train because the gains would exceed that potential loss
-actors should be forced to internalize their externalities
-judgment for P

Epstein, “Intentional Harms”
-even though a decision may not be blameworthy morally, because expected benefits > expected costs, you may pass your loss on to P
-strict liability argument: prima facie, you shouldn’t be able to pass your losses on
-if you act, you should bear the consequences of that act

Holmes, “Common Law”
-cause of harm is not enough for negligence; reasonable foreseeability is necessary
-it’s to the social good to encourage people to act, but if you have strict liability, you will encourage people not to act

Calabresi, “Risk Deduction and the Law of Torts”
-strict liability should apply to business enterprises
-strict liability accomplishes loss spreading, which means that the prices of products will reflect their costs; activities should bear their costs
-if they cause harm too much of the time, they’ll price themselves out of the market

Coase, “Problem of Social Cost”
-both parties contribute to a result because both were a part of the circumstances that led to the harm
-in the absence of transaction costs, all government allocations of property rights are equally efficient
-parties will bargain privately around any entitlement
-the rule is only relevant for distribution, and doesn’t affect the economy

the court replaces it with a reasonable care standard

NSPCA v. Hudson
England, 1993
-P’s dog kept peeing on D’s lawn, D electrifies his fence and dog was electrified more than D expected – did lots of damage to the dog
-there must be an objective standard; even if the defendant didn’t appreciate the risk, it’s what he should have known, not what he did know, that counts
-D wins


-test is ‘reasonable child,’ they don’t have ability to foresee consequences of conduct
-Dellwo v. Pearson: 12 y/o driving boat – when engaged in adult activities, adult standard

Role of Judge and Jury

B&O Railroad v. Goodman (overruled by Pokora)
SCOTUS, 1927.
-man killed at railroad crossing
-plaintiff was contributory negligent because he didn’t look for a train
-the judge sets the standard of conduct, the jury decides whether it was followed

Pokora v. Wabash Railway Co.
SCOTUS, 1934
-another guy hit by a train
-the jury should be the one to figure out what a reasonable person would have done
-the plaintiff was not contributorily negligent here

Andrews v. United Airlines
9th Circuit, 1994
-luggage fell from overhead bin
-it’s the jury’s job to decide if retrofitting with netting is appropriate

Trimarco v. Klein
New York, 1982
-jury decides role of custom
-landlord didn’t put in shatterproof shower door decades after they became the standard