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University of Pennsylvania School of Law
Feldman, Eric A.

I. Introduction

§ How should we take care of victims of accidents?
§ How effectively and efficiently can the compensation mechanisms be used?
§ How do you deter accidents?
§ How do you handle them across the board – different events with different individuals while sharing some sense of justice?
§ How do you handle this in a legal structure that isn’t overly expensive for society?

Hammontree v Jenner
Court of Appeal of California, 1971
The “liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence.”
§ Δ had an epileptic seizure while driving
§ Δ’s car crashed through the wall of the Π’s bike shop, both damaging the shop and hurting Π.
§ Not strict liability

§ Holmes – accidents happen. “Loss from accident must lie where it falls” unless there is a compelling reason to do otherwise
§ Burden of proof – just over 50% – more likely than not, preponderance of the evidence.
§ Presumptive goal of providing damages– to bring the Π back to where they were before the accident

II. Vicarious Liability

Respondeat Superior
§ Why should we ever impose liability on someone who didn’t do something wrong
§ How far does that standard go?
§ What about independent contractors?

Christenson v Swenson, (Burns)
Supreme Court of Utah, 1994
Summary judgment is inappropriate because reasonable people could decide either way whether Swenson was acting within or outside the scope of her employment at the time of the accident.
§ Respondeat superior: ‘employers are vicariously liable for torts committed by employees while acting within the scope of their employment.’
§ Birkner says that if the employee is engaged in an ‘objective of employment,’ even if their method is a poor one, that counts.
§ 3 criteria:
§ 1)The employee’s conduct must be the kind they are hired to perform, not business that is entirely personal,
§ 2) It must happen during the time of their job and within the same space,
§ 3) The action must be motivated at least partly by serving the employer

§ Respondeat superior a little like absolute liability
² Provides incentives to employers to screen employees well; find people who are less likely to cause accidents
² Likely to have fewer uncompensated victims; fairness
² Find alternatives to people – machines

Ostensible Agency

Baptist Memorial Hospital System v Sampson
Supreme Court of Texas, 1998
Π did not meet a burden of proof to show that the hospital was responsible for Dr. Zakula under ostensible agency.
§ Δ was bitten by a brown recluse spider.
§ Π posted signs in the emergency room that it employed independent contractors
§ Ostensible agency – If the ‘principal, by its conduct caused him to believe’ the agent was an employee and if he ‘justifiably relied’ on this appearance

Snow removal: the mall isn’t allowed to avoid their duty to make the property safe
§ found mall to be liable even though they had employed a contractor to remove the snow

III. Negligence – Standard of Due Care

Unreasonable Risk

Brown v Kendall
Supreme Judicial Court of Massachusetts, 1850
Δ is only liable for unintentional injury if Δ was either at fault or failed to exercise ordinary care. If Π was not using ordinary care, Δ can not be liable.
§ Δ took a stick about 4 feet long and, while beating the dogs in order to separate them, accidentally struck Π in the eye.
§ contributory negligence is often a complete bar to recovery
§ the burden of proving lack of Δ’s due care is on Π if it was a necessary act
§ if it was an unnecessary act, the burden of proving Δ’s due care is on Δ

Adams v Bullock
Court of Appeals of New York, 1919
Δ is not liable because Δ took all reasonable precautions.
§ Π swung the wire into the trolley wire and was shocked and burned
§ This is the first time this kind of accident has ever occurred
§ No additional evidence that Δ didn’t take reasonable precautions – only an extraordinary event could cause someone to come in contact with the wires and Δ couldn’t have predicted where on the wires contact might happen
§ ‘in lawful exercise of its franchise’ by using overhead wires – can’t be negligent for using that system.
§ Needs to use ordinary care, not extraordinary

United States v Carroll Towing Co.
United States Court of Appeals, Second Circuit, 1947
An owner is responsible for taking precautions if the burden of those precautions is less than the probability of an accident times the resulting damage.
§ The Anna C. broke loose, rammed against a tanker whose propeller made a hole near the bottom of the Anna C The bargee was absent from the Anna C.; if the bargee had been aboard, other boats could have kept the Anna C. afloat
§ Burden<(probability)injury – compared to if there were no precautions – would still be some accidents
§ The probability of the incident (breaking away)
§ The level of resulting injury
§ The ‘burden of adequate precautions’ – what does it cost for the owner to achieve the next level of safety

§ What are the upsides and downsides to using an equation? Could be used to put a cost on human life or injury
§ We don’t want to force people to spend an extraordinary amount of money where it isn’t justified.
§ Can still impose liability even if they spend exactly the right amount on safety – may still force them to pay for the damages.
§ A framework, a tool for thinking about the allocation of responsibility

Reasonable Person
§ Do we care if they did something carelessly or thought about doing something careless?
§ Do we look at the qualities of the individual him/herself or more generically at ‘reasonableness’?

Bethel v New York City Transit Authority
Court of Appeals of New York, 1998
Utmost care should not apply anymore; common carriers should be subject to a traditional negligence standard of reasonable care.
§ Π was hurt when the wheelchair accessible seat on Δ’s bus collapsed under him
§ Negligence ‘presupposes some uniform standard of behavior’ – asks what a reasonable person would do. Takes into account the actual situation and associated level of risk – has some flexibility. It is contextual.
§ Utmost care was used for carriers as steam railroads were being developed – there were only primitive safety features that resulted in a lot of accidents
§ In modern times, however, ‘public conveyances have become at least as safe as private travel’

Freak out: Bashi held her to a reasonable care standard despite mental illness in her history
‘I wigged out,’ she hit a car, left the scene without stopping, collided with Π

Negligent creation of the situation: Ramsbottom –he was impaired but still got behind the wheel. Still held to reasonable care.
§ 73 year old had a stroke –

Children: Pearson – 12 year old driving a motorboat – if he’s doing an adult activity, he should be treated as an adult – an oncoming boat driver

and her husband were in a buggy struck by Δ in a car at a curve in the road
§ Π did not have the buggy lights on; it is assumed ‘that the hour had arrived when lights were due’
§ A jury can’t decide to ‘relax the duty that one traveler on the highway owes under the statute to another’
§ Might be different in unavoidable accident – woefully or heedlessly ignoring the statute is negligence, but maybe not if you can’t avoid it

Tedla v. Ellman
Court of Appeals of New York, 1939
Violating a law that was intended to increase safety because applying it would actually decrease safety is not contributory negligence.
§ 2 junk collectors, brother and sister, were hit from behind by Δ while walking along a highway on the wrong side of the road because the correct side had heavy traffic
§ If there is a law designed to provide additional safety, it becomes the standard rather than that of a reasonable prudent person
§ “Negligence is failure to exercise the care required by law”
§ There are 2 kinds of statutes:
§ Rules of the road – order preserving statutes – as long as we all know which way the right lane goes, etc.
§ Statutes designed to increase safety
§ If rule doesn’t fix a standard of care but makes common-law rule ‘which has always been subject to limitations and exceptions’ law OR if the rule tries to make things safer, it doesn’t eliminate common law duty (as interpreted by common law) NOR do you have to follow it if it makes things less safe.
§ You’re still at fault if you don’t observe the law without good reason – ‘deviation…without good cause is a wrong’

Sheep – the statute didn’t intend to prevent sheep being washed overboard, so it doesn’t ‘confer any benefit on Πs
§ No – statute says sheep on a ship should be in pens so they don’t get sick – water washes over the ship and the sheep get washed overboard

Shaft barrier – the statute’s purpose is to keep people from falling down the shaft – there are a variety of possible reasons for the statute
§ Yes – statute said open shafts should have barriers – this shaft didn’t have a barrier and someone knocks a radiator through the shaft and it falls on Π

Rolling car – statute irrelevant because it was intended to prevent fires and not to avoid injuries from moving vehicles
§ No – statute says engines of cars must be turned off when getting gas – so cars don’t explode – car rolled back and pinned someone between the car and the pump – court held

§ Licenses – Court is usually more concerned with was the underlying act done in a reasonable way? Should I be held responsible for my conduct? Did you do it carefully? If you don’t have a license, shame on you, but we’re not going to hold you responsible for the entire chain of results that would have happened even if you had a license

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