Select Page

University of Pennsylvania School of Law
Austin, Regina

I. The Basics
Types of torts
Intentional: generally, intent to harm or offend is required
Fault/Negligence: failure to use due care, to act as reasonably prudent person would
Strict Liability: generally requires causation, and social purpose to compensate or deter
General policy types
Six main policy considerations for tort law
1. Efficiencies regarding deterrence
2. Efficiencies regarding compensation/loss spreading
3. Morality/Particular notions of moral blameworthiness and responsibility to others
4. Cultural or social norms
5. Practical politicis
6. Judicial administration

Private enterprise
Liberty of the free market
Social welfare
Corporate responsibility
Liberty preserved by regulation

General theory types
Holmes’ laissez-faire theory: General principle of law is “loss from accident must lie where it falls”à notion that we are better off with a regulatory scheme where state/courts do not interfere à fault must be a factor in the situation.
Posner’s economic theory: Negligence is economically efficient. Deterrence (don’t waste resources on preventing accidents that reasonable care could prevent…don’t want to spend more than save in accident costs); notion that 1st person insurance is more efficient so don’t have to bring a cause of action

The fundamental issue addressed by a system of tort liability for unintended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation
Hammontree v. Jenner (App. Ct. Ca. 1971)
Facts: P’s Maxine Hammontree and her husband sued the D, Jenner, for personal injuries and property damage arising out of an automobile accident that occurred when the D incurred a seizure and crashed into the plaintiff’s store. The defendant had a history of epileptic seizures, but was taking medication for the condition and was not expecting any medical problems at the time of the accident.
Holding: The court declined to impose absolute liability (liability w/o regard to negligence) on automobile drivers like Jenner
§ The Plaintiffs argued for absolute liability instruction because the defendant was not negligent or careless in driving, P would just have to prove D caused her harm

Vicarious liability
1.Respondeat Superior:
With respondeat superior, employers are vicariously liable for torts committed by employees while acting within scope of employment.
Ø In some situations it may be difficult to find the proper plaintiff and to measure the recoverable loss
Ø Under the doctrine of “respondeat superior,” employers are vicariously liable for torts committed by employees acting within the scope of their employment (employee liability imputed to employer)
Ø General idea àD is held liable for the actionable conduct of a subordinate or associate because of the relationship between the two parties
Ø Who: Plaintiffs are generally representatives for children and decedents – Defendants are generally employers
Ø Carries forth theme from Hammontree: the party who is liable often is not the one to pay

Policies/Justifications (both Economic-based and Justice-based):
o Prevent future injuries (Gary Schwartz: “employers can supervise, discipline, and think of alternatives”)
o Assure victim compensation (company has deeper pockets)
o Spread losses equally caused by enterprise (b/n insurance, investors, customers and employees; internalizes negative externalities; deterrence: fewer buyers b/c encourages businesses to raise price)
o Incentivize employers (to pick employees and supervise well, to discipline negligent employees, to consider alternatives to employee efforts (ex. mechanization))
o Justice in social notion of workplace, like workman’s compensation

Christenson v. Swenson (1994) p.18 – respondeat superior + criteria
Facts: Swenson, an employee of Burns, was involved in an automobile accident while returning from her lunch break. She was returning to her post at Gate 4 of the Geneva Steel Plant (not sued but perhaps could have been under Ostensible Agency doctrine) when she was involved in the accident. The other driver brought suit claiming that Swenson was driving negligently.
Holding: An employee’s actions falling within the scope of employment are those acts for which the employer can be held liable
Rule: Employer was vicariously liable under doctrine of respondeat superior for torts committed by employees while acting within scope of employment (Birkner test)

TEST for Respondeat Superior:
(Birkner v. Salt Lake County test +used in Christensen)
3 Criteria to determine if an employee is acting within our outside the scope of employment:
o The employee’s conduct must be of the general kind the employee is hired to do
o The employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment
o The employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
***Criticism of inadequacy of the motive test: the employer should be held to expect risks to the public which arise “out of and in the course of’ his employment of labor” (Bushey v. U.S.)
Bushey v. U.S.: Was conduct within foreseeable risks of employing labor
Restatement: Was employee engaging in course of conduct subject to employer’s control
2.Independent Contractors:
General Rule for Independent Contractors:An employer is not vicariously liable for negligence of an independent contractor EXCEPT when:
1. The employer gives the IC apparent authority to act on employer’s behalf (authority a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing).

2. The employer hired IC to undertake nondelegable duty (where patient can’t shop in open market)
3. The employer hired IC to do inherently dangerous activity
Apparent Authority-authority which a principal knowingly tolerates or permits, or which the principal, by its actions of words holds the agent out as possessing
o A principal may be liable to a third party for acts of its agent which are within the agent’s apparent authority
o This occurs only where the principal creates the appearance of an agency relationship

3-Part TEST for Apparent Agency:
1.) Representation by the purported principal
2.) A reliance on that representation by a third party
3.) A change in position by the third party in reliance on the representation

Non-delegable duties: Performance of an obligatio

creating conduct in order to avoid acts that are unduly risky (cost/benefit analysis)

D may be found negligent for failing to anticipate the negligence of another person (e.g. letting person drive drunk, parking car on shoulder which poses danger to someone not paying attention, etc.)

Adams v. Bullock (1919) p.40 (child swinging wire)
Facts: D, Bullock, operates a trolley. P, Adams, 12 yr. old boy swings a wire above the trolley, the wire touched the trolley wire, and he was shocked and burned
Holding: There is a duty to adopt all reasonable precautions to minimize foreseeable perils, if fulfilled ® no liability.
§ Here, the defendant took reasonable caution to prevent accidents from occurring.
§ He could not have foreseen a boy jumping swinging on wires to injure himself (extraordinary peril) – this was an extraordinary accident, it had never happened before, not foreseeable
Rule: A reasonably prudent person responds to foreseeable, unreasonable risks

The Reasonable Person:
Subjective standard applies:
o Superior skill or expertise
§ Professionals and highly skilled individuals are held to the standard of people with that skill (i.e. surgeons are judged against other surgeons)
o Physical disability
§ Severe physical impairment – i.e. blind person held to std of a “reasonable blind person”
§ heart attack or temporary dizziness, as well as transitory delirium are regarded as circumstances to be taken into account in determining what the reasonable man would do
o Mental illness if sudden onset
§ Only a complete loss of consciousness will excuse duty of reasonable care
§ Ex. Driver suddenly stricken by illness rendering him unconscious is not negligent
o Youth (subjective as to age, intelligence, or experience; objective if doing adult activities
o Emergencies (most jurisdictions)
§ A person confronted with a sudden and unforeseeable occurrence because of too little time to react should not be held to same std of care as someone confronted with foreseeable occurrence – suggests choice of action
Subjective does NOT apply:
o Below average intelligence
Subjective standard MAY apply:
o Mental illness (non sudden onset)
o Emergencies (in some jurisdictions)
o Old age

Vaughan v. Menlove (1837) p.55
Facts: Unintelligent farmer piled hay negligently, started fire. P liable
Rule:objective standard for reasonable man holds

More potential exceptions to Reasonable Person standard:
Used to be heightened duty for reasonable care for COMMON CARRIERS
Bethel v. NYC Transit Authority (1998) p.50 (wheelchair seat case + reasonable person standard)
Facts: P was injured while