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University of Pennsylvania School of Law
Feldman, Eric A.

Torts Outline:
Who is responsible? Issues of values, linkages, story in facts, negligence or strict liability? When is there a duty? When is the duty Breached?
I.                   Intro
a.       The basic yet contending tort theories:
                                                              i.      O.W. Holmes: “Accident should lie where it falls.”
                                                            ii.      Posner: Weigh the economic benefits; distributive cost (NOTES)
1.      Gary Schwartz:
b.      Hammontree v. Jenner (1971)
                                                              i.      Ph worked at bike shop at home; Dj drove into P wall and injured P; D had history of seizures but had not suffered in awhile and complied with doctors and DMV requirements; P cites Escola for strict liability—likens driver to being only one in position to know dangers and should thus be liable
1.      Court: Escola relates to product liability; strict liability in auto accidents would be complicated without legislative instructions; court establishing car-strict liability would have been revolutionary; DMV standard sufficient because they are experts
c.       Litigation Process
                                                              i.      Contingency is usually about 40%
1.      “Losing defendant pays” instead of “loser pays”
                                                            ii.      Cases are decided on the preponderance of the law / more likely than not
                                                          iii.      Prejudicial Error – court error that could have reasonably affected outcome
                                                          iv.      Harmless Error – Error by court irrelevant to decision
d.      Vicarious Liability: When is it proper for an employer to pay?
                                                              i.      Does not require direct negligent act by employer; employee is part of the company unless completely working within their own capacity
                                                            ii.      More common for principle to indemnify contractors than employees
                                                          iii.      Christensen v. Swenson (1994)
1.      D ran security guard company; guard while returning from paid break at shop hit P; P had a short break and only one shop was available; P claims that D knew this because there was menu in office and allotted break timed so guards could go and return in time; SJD
a.       COURT: Criteria to determine if working wholly or partially in scope of work: 1: not working wholly in personal capacity—D tailored break and could also be monitoring perimeter; 2: Within hours and spatial boundary of employment—time and obtaining food to continue working in allotted break; 3: partially motivated by employer interest—speed / efficiency promoted, must be fed
                                                          iv.      Restatement 3rd of Agency 7.07: act is not within scope of employment when occurring within conduct not intended by employer to serve interest of employer
                                                            v.      Restatement 2nd of Torts 409: VICARIOUS LIABILITY CONTRACTOR: General entity is not liable for acts of independent contractor because there is no direct relationship (CHECK), unless…
                                                          vi.      Restatement 2nd of Torts 429: APPARENT AUTHORITY: 409 does not apply when there are representations made by principle suggest to 3rd party that principle and agency are same entity
1.      Roessler v. Novak (2003)
a.       P was referred to emergency room after diagnosis; Dr who worked for 3rd party contractor at hospital performed negligent procedure; P sues Dhospital for vicarious liability; SJD
b.      COURT: Dr working for 3rd party was apparent agent of hospital—principal agent knowingly tolerates or permits reasonable perception of direct employment; 1. representation by principle of 3d party; reliance of representation by 3d party; 3d party is affected by reliance on representation
II.                Negligence: Duty, Breach, Cause, Damages
a.       Negligence, Generally
                                                              i.      Intent v. Result
                                                            ii.      Necessity v. Level of Care
1.      Necessity: responsibility of P to care for self; D does not need to care
a.       Burden of Proof on P to show
2.      Level of Care: not P responsibility, instead Ds; D can be found negligent
a.       Burden of Proof: D show extraordinary care/P less ordinary care
                                                          iii.      Brown v. Kendall (1850)
1.      P and D dogs were fighting; D uses stick to beat dogs and hits P in eye and P eventually dies; jury instr burden of proof placed on D to show extraordinary care; DP
a.       COURT: P has burden of proof to prove case; 1: duty for D to adopt reasonable precaution to minimize peril “prudent and caut

curity and have to take every precaution to the point of leaving car to check for trains; in an emergency at own peril because reasonable precautions not taken beforehand
5.      Pakora v. Wabash Railway Co. (1934)
a.       P was driving truck but could not see much of track because boxcars were blocking view; could hear nothing; after crossing a couple of tracks, train hit him; DVP
                                                                                                                                      i.      COURT: P had duty to look and listen for train, but it is reasonable to continue if nothing is heard/seen; JURY should have determined reasonableness because there are contextual issues to consider (such as buy street in city)
                                                                                                                                    ii.      Response to B & O: judge cannot delegate what is reasonable in absolute situations because context is neglected
6.      Andrews v. United Airlines, Inc. (1994)
a.       After flight, P was hit with suitcase from overhead compartment; P claims Foreseeability; D claims that occurrence is rare, not worth cost or repair, that passengers are warned; SJD
                                                                                                                                      i.      COURT: Jury should decide; D did not prove cost was high (show overwhelming burden or lack of necessity); D knew of hazard and should be determined if they took sufficient precautions; jurors able to decide; B>PL
                                                            ii.      Custom
1.      Can suggest, but not prove fault, because jury determination carries more weight
2.      Trimarco v. Klein (1982)
a.       P severely cut when falling through shower door; P thought that it was tempered glass because that was standard at the time; D claims no prior issue and that glass was old; P claims that safer glass is customary; JurP; Dappeals on no duty or prior issue