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University of Pennsylvania School of Law
Austin, Regina


I. NEGLIGENCE: Failure to use due care or to act as a reasonably prudent person would
A. Development of Fault Liability:
1. To develop a prima facie case of negligence:
1.) Duty
2.) Breach
3.) Cause in fact
4.) Proximate Cause
5.) Damages
2. Hammontree v. Jenner: D had past history of epileptic seizures. After 14 years without a seizure, one occurred causing him to have a car accident in which P was injured. D had a valid driver’s license and the authorities knew of his condition. Must determine which standard of liability can apply to this case (negligence or strict liability). Holding: case should be focused on law of negligence and not strict liability. Since D used reasonable care, the law of negligence should not apply.
3. Policy:
a.) Holmes: laissez faire notion: state interference is an evil where it cannot be shown to be a good. If act reasonably, let the loss lie where it falls; justice requires a torts regulatory scheme where the state does not interfere
b.) Posner: economic efficiency: if measures to avert accident would consume excessive resources, there is no occasion to condemn
1) first party versus third party insurance: first party insurance is more efficient because you do not have to bring a cause of action and you know how much you are worth (so much easier to regulate)
c.) if imposed idea of strict liability, relates to deterrence – Jenner would be induced to expend more resources to prevent the accident (may relate to notions of fairness)

II. Vicarious Liablity: form of strict, secondary liability that arises under the common law doctrine of respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator.
1. Christensen v. Swensen: Employee-employer relationship, Swensen leaving to get lunch at café right across the street and collides with motorcycle – several people injured. Was Swensen acting within scope of employment? Holding: case remanded (summary judgment denied) because reasonable minds could find that Swensen was acting within scope of employment.
a.) three prong test to determine (taken from Birkner case): (1) employee’s conduct must be of the general kind that the employee is hired to perform, (2) employee’s conduct must occur substantially within the hours of ordinary spatial boundaries of employment, (3) employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest
b.) Strict liability leaves it up to employer to decide what precautions to take to prevent.
2. Two ways to establish strict liability: (1) Birkner 3 elements (applied in Swensen case) and (2) Bushey policy. Bushey policy approaches issues in terms of foreseeability and nature of enterprise (stricter standard to meet vicarious liability). Policy relates to justice and fairness and what an employer can perceive as possible consequences of hiring someone to do your work.
3. Independent Contractors:
a. Rule: an employer is not vicariously liable for the negligence of an independent contractor
· Three exceptions:
(1) When the employer holds the independent contractor out as having apparent authority to act on the employer’s behalf. Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing.
a. Three elements: (1) a 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
b. Roessler v. Novak: Roessler was patient of Dr. Lichtenstein who performed surgery and was negligent in diagnoses; Roessler suffered serious complications and the issue is whether Sarasota Memorial hospital is vicariously liable for the actions of the doctor, in that he acted with the apparent authority of the hospital. The court held that the patient could have thought that the hospital’s providing of a doctor is a representation of an employee so summary judgment denied.
i. Benefit for hospital to hire independent contractor: easier to organize, stave off liability claims, lower taxes, avoid labor laws.
ii. Policies for broad liability on hospital (make it nondelegable duty): assures compensation to victims, spread loses equitably, deterrence (best position to screen who they hire so don’t just hire cheapest), judicial administration (discourage litigation with more obvious liability rules), fairness (no transparency or consumer reports – patients have no ability to protect themselves), individual autonomy (has no choice in doctors assigned), economic efficiency (more efficient for business to be held to standard than a “buyer beware” society)
iii. Policies for liability to be restricted to independent contractor: fairness (put burden on person who actually made the mistake), economic benefit to public through more accessible medical services (hospitals avoid taxes, avoid scheduling issues), judicial administration (more obvious liability rule)
(2) When the employer hires an independent contractor to undertake a nondelegable duty
(3) When the employer hires an independent contractor to undertake an inherently dangerous activity

III. The Negligence Central Concept: Reasonable or Due Care
1. Old system for negligence: very confusing, wanted to streamline (result was Brown v. Kendall)
(a) trespass vi et armis: P had to show an injury resulting from a voluntary act of direct and immediate application of force against the victim or property
(b) trespass on the case: injury resulting from an indirect, non-immediate, but consequential application of force or from a neglect of duty
2. Brown v. Kendall (switch to the fault principle): Two dogs were fighting and D took stick to break them up, accidentally hitting P in the eye. Issue was whether 1) necessary to interfere in fight, 2) interference was in proper manner, and 3) what degree of care was taken by each party.
(a) Holding: given the act was unintentional and it was a lawful act, D is not liable unless he performed without due care. P has burden of proof.
(b) Rule: P cannot recover if: (1) both P and D were using ordinary care; (2) just D was using ordinary care or (3) if neither P nor D was using ordinary care.
(c) Shaw reinterprets and says to look at whether harm was “intentional” and “unintentional” instead of “voluntary” and “involuntary” (matters in regard to harm and not to the act). Then, switch to the fault principle. To recover from unintentional harm, P has burden to prove that D failed to meet ordinary level of care, defined as “kind and degree of care, which prudent and cautious men would use…”
(d) Moves away from Weaver v Ward and this sense of strict liability that was associated with trespass vi et armis. Introduces concept like negligence of the inevitable act without D’s fault. If it was a lawful act, all you have to do is use due care. Lawful conduct of selfish nature is encouraged.
3. Adams v. Bullock: (rule: “a reasonably prudent person responds to foreseeable, unreasonable risks”) P, small boy, was injured while walking on a bridge and swinging wire, which made contact with a trolley wire below. Sues D, trolley line, for negligence. Holding: company should not be held liable for something that was unforeseeable, especially when the company acted within its lawful franchise. D must have been able to foresee the harm and have ability to take measures to prevent.
(a) Problems with foresight test: if doing something new that hasn’t been done before, cannot expect to have foresight; law of torts may subsidize certain industries such as pharmaceuticals which may go against notions of fairness (but ends may justify means in bringing new drugs to marketplace)
4. United States v. Carroll Towing Co: (how to determine what is reasonable): P owns boat, Anna C, filled with cargo owned by US. A bargee tied the barge Anna C at the pier with other barges and the next day, “Carroll” was sent to the pier to “drill out” another barge; due to negligence in securing Anna C, the boat broke loose and rammed into the tanker and the Anna C sank. P sued for indemnity for loss. P’s bargee was absent from the Anna C. P could be contributorily negligent (if bargee had been present to sound warning, could have kept boat afloat). Must decide which, if any, of the parties had been negligent in connection with the loss of the Anna C (Conners had claims against Carroll Towing for negligence, Carrol Towing could say Conners was contributorily negligent, US could claim Conners, Carroll Towing, and Grace Line were vicariously liable)
(a) Rule to determine what is reasonable: Hand Formula. Assuming foresight,
B = burden of taking precautions or the benefit of the activity if it must be stopped
P = possibility or the probability that a loss will occur
L = magnitude of the lass
Negligence = B<PL
Not Negligence = B>PL
(b) Holding: B<PL and P is found negligent. California charge of negligence: Negligence is the doing of something which a reasonable prudent person would not do, or failure to do something which a reasonable prudent person would do, under circumstances similar to those shown by the evidence.
(c) Problem with Hand Formula – information costs and incommensurablility (not comparable in terms of a common metric). Community expectations may play a role in BPL, as there are inherent value judgments (notions of morality and issues of economic efficiency)
(d) Two other approaches:
a. Foreseeable Danger Approach (Holmes): Due care is about avoiding risks; if you don’t know the risks, you cannot exercise due care. Doesn’t care about the B, only cares about the PL
b. Community Expectations-If it is typical among X group to do a certain preventative thing and you do not do it, you might be liable because of social norms. Idea that social understandings and norms are better guide to what is in society’s best interests than cost-benefit analysis
(e) Law of negligence has within it a kind of subsidy that says if you take effective measures and the accident happened, you don’t have to pay for it and the burden is on the plaintiff.
(f) Justifications for rule of negligence:
a. Economic Efficiency (Posner) – where measures necessary to avert accident would consume excessive resources, there is no occasion to condemn the D for not having taken them
b. Laissez Faire (Holmes)/ Liberty of Free Market: state interference is an evil where it cannot be shown to be a good
c. Establishes industry: negligence helps to subsidize industries by shifting the fault from the industries to the plaintiff (as opposed to strict liability – either way, negligence and strict liability encourage same amount of deterrence)
d. Self reliance, private enterprise, individualism, liberty of free market

III. Determining the Reasonably Prudent Person
A. Bethel v New York City Transit Authority (common carrier is subject to same duty as any other potential tortfeaser; standard of reasonable care): P was hurt on D’s bus when

hin the class of injuries the statute was designed to prevent.
b. With questions of statutory purpose rule, ALWAYS ASK: (1) who is the class of people that the statute was designed protect? (2) was the injury within the class of injuries that the statute was designed to prevent?
c. Martin v. Herzog (The unexcused violation of a statutory duty is negligence– a jury does not have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway): P and husband were driving buggy when struck by D’s car coming in opposite direction. P charged D with negligence for keeping to side of highway and D charged P with contributory negligence because P was driving without lights.
i. Because statute is designed to protect human life, it is a standard of due care. But court is bringing a criminal statute into torts. Why? Refers to legislature and given that there was a breach of a statute, we have negligence per se
d. Tedla v. Ellman: (Example of negligence per se with limited exceptions) (It is not negligence as a matter of law for one to violate a statute, if by doing so, he is likely to prevent rather than cause the harm which is the statute’s purpose to avoid) Ps were walking along highway with heavy traffic. There is a statute that orders which side of road they should be walking on, but they were walking on opposite side due to very few cars going that way. Ps were hit from behind by D’s car.
i. Statutory purpose rule: To invoke a violation of a statute as evidence of negligence, P must show that that the injury sustained was of the type the statute was intended to prevent.
ii. Court does not look to negligence per se. Court has some discretion in saying whether or not the statute was violated – court finds an exception in the statute by arguing that this was not a violation

Proof of Negligence: kind of proof you mount depends on standard you use (flexible standards (BPL test), social or community norms, expectations, custom of injury, statutes)
1. Flexible standard: P has burden of proving that the D’s conduct fell below the standard of reasonable care.
a. For elements of breach, look at:
i. What D did
ii. How dangerous it was
iii. That D knew or should have reasonably known about the danger (constructive notice)
iv. Safer alternatives available
v. D knew or reasonably should have known about the safer alternatives
b. Negri v. Stop and Shop: (A prima facie case of negligence may be established by circumstantial evidence that a party did not act to remedy a potentially hazardous condition of which the party had constructive notice) P was shopping in store when fell backward and hit head on floor where broken jars of baby food lay. Witness had not heard shelves falling for 15-20 min prior to accident and aisle had not been cleaned or inspected for at least 50 minutes.
i. Decide that it’s up for jury to decide if D had constructive notice
c. Gordon v American Museum of National History: (To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit D’s employees to discover and remedy it) P was injured when fell on steps. While slipping on steps, P observed a piece of white, waxy paper. P alleges that D was negligent insofar as its employees failed to discover and remove the paper before he fell on it
i. Holding: No evidence that anyone observed paper prior to accident and paper was not dirty or worn, which means it could have happened just few minutes prior à thus, P lacks evidence establishing constructive notice of the particular condition that caused his fall
d. Lowering the Burden of Proof: Moving more toward strict liability than negligence
i. P is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise
ii. Some courts have altered rules for slips and falls: business practice rule
1. In jurisdiction with business practice rule operating, the defendant must show what the usual practice of the store is à if there are open shelves and the produce is loose, and P falls, then P has little burden of proof
2. Business practice approach reduces obligation of P to show constructive notice
Example (unwilling to extend business practice rule too far): Randall v K-Mart Corp (p 90): P slipped on bird seed aisle in D’s store – tried to sue under “business practice rule” but