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University of Pennsylvania School of Law
Feldman, Eric A.

1. Intro (pp. 1-9)
Primary Concern: Who Should Pay?
Goals of Tort Law
a.       Compensation
b.      Fairness
c.       Minimize Administrative Costs
d.      Risk spreading
e.       Deterrence
Issues to Consider in Approaching Problems
a.       Duty of care: based on relationship between the parties.
b.      Breach / Standard of care: what conduct discharges the duty?
c.       Loss: the harm to a protected interest
d.      Causation: (Both actual and proximate)
e.       Defenses: contributory/comparative negligence and assumption of risk
Burdens of Proof
Tort—preponderance of the evidence
Criminal—Beyond reasonable doubt
Types of Liability
–          Negligence– breach of duty of care.
–          Strict Liability / Absolute Liability —responsibility (without having to prove negligence) for damages
Hammontree v. Jenner, Court of Appeal of California, (1971) (Negligence)
Defendant, after suffering an epileptic seizure which caused unconsciousness, crashed car into plaintiff’s shop injuring plaintiff Hammontree and her shop. Doctors gave defendant go-ahead to drive.
Rule: In car wrecks, there is no liability where there is no fault. Negligence standard. Must show carelessness.
Rule Elaboration: A driver who suddenly is stricken by an illness or physical condition which he had no reason whatsoever to anticipate and of which he had no prior knowledge is not liable for damages.
Public Policy:   Competing ideas of strict liability and negligence. Strict liability is strongly discouraged in car wrecks, unlike manufactured goods, because there are sometimes good explanations for why something happened and society wants to protect ‘innocent’ tortfeasors. Plus, drivers are not part of the overall profit machinery, in contrast to manufacturers.
*Maloney v. Rath, California Supreme Court (1968) (No Strict Liability)
Rule: Strict liability is not a viable option.
Rule Elaboration: In this case it was the mechanics faulty installation of breaks and not the drivers fault.
Public Policy: “To invoke a rule of strict liability on users of the streets and highways without also establishing in substantial detail how the new rule should operate would only contribute confusion.” 
Problem: Who is strictly liable?
*Waschek v. State, (1997) (Gov’t immunity for discretionary agent actions)
DMV inspector gave a 96 y.o. driver a driving test in which the driver passed and was issued a license. 20 months later said driver was involved in an accident. Pedestrian sued the DMV for issuing the license.
Rule: A government agency is immune if the agent was following rules and not acting under his own discretion.
Rule Elaboration: Can’t sue if the DMV did everything it was required to do under law and made no discretionary choice.
Public Policy: The idea is that the government in acting on behalf of the greater good for the greatest amount of citizens so the rules it has in place must not be sued over; governmental agencies have immunity when there is no discretion involved.
2. Litigation Process (pp. 9-17)(Outline p. 128)
Steps of a Plaintiff:
Consult and retain an attorney
Attorney tries to reach settlement
Upon failing claimant becomes plaintiff in a suit
Complainant will allege facts
To trial
·         If the case regards a question of law then it can be solved without a jury
·         If the case regards a question of facts then a jury is needed.
      6. Closing arguments
Steps of a Defendant:
1.      Motion to dismiss if the argument is unsound
2.      Appeal the judge’s dismissal of the motion to dismiss (in some states)
3.      Contest the plaintiff’s allegations via the answer
4.      Motion for summary judgment if the facts permit
5.      Trial
6.      Motion for directed verdict (trial hasn’t reached jury stage yet because an essential fact hasn’t been proven by the plaintiff)
7.      Closing arguments
2 Components of the Burden of Proof (Plaintiff)
Show sufficient evidence
Persuade the finder of fact that his version is “more likely than not” true.
Rule of Double Jeopardy
Common law provides that a plaintiff can sue only once for the harm she has suffered and the Statute of Limitations gives a time limit within which she must do it.
Goal of tort law is to restore plaintiff to the equivalent of her position prior to the injury. Usually money is used to do so.
Collecting on a Judgment
If the losing party doesn’t pay, often, the expense outweighs the benefit of rounding up that money, either through garnishment or collection agencies, or seizing property.
Attorneys and Fees
Many times, contingent fees method of paying the attorney a set portion of the winnings if the case is won.
Appellate Decisions
Only 2% of all claims ever make it to court. And far fewer are appealed. Tort problems are more likely to reach litigation than contract problems and this makes sense because contracts usually have backup documents that allow the case to be settled. Torts however, happen in a split second and usually there is much less good evidence available.
Court Structure
Supreme Court (NY=Court of Appeals)
The Court of Appeal (NY=Appellate Division of the Supreme Court)
Trial Court or Superior Court (NY=Supreme Court)
3. Vicarious Liability (pp. 17-30)(Outline p.127)
General Rule: The employer is held liable for the actionable conduct of an employee (not an independent contractor) acting within the scope of employment. Respondeat Superior—“Let the master answer” (Common Law Principle).
–          Limitation: No vicarious liability for an employee’s intentional tort.
How Does Vicarious Liability Achieve Goals of Tort Law?
a.       Employer is better able to prevent risks, be more careful about activities their employees engage in (Deterrence)
b.       Employer will be careful about who it hires (Deterrence)
c.       Employer can spread costs better than employee (Risk Spreading)
d.       Employer is more likely to have $$ to compensate (Compensation, Fairness)
3-Part Birkner Test for Vicarious Liability: An employer is vicariously responsible, if the employee’s tortuous act was:
1.      Within the Scope of Duties -Employee

y prudent person would not do or failure to do something that a reasonably prudent person would do
Basic Facts about Negligence
Due care is based off what a reasonable person would have done.
Due care is not based on what the defendant believed was reasonable.
Tort of Negligence:
Elements needed to recover—Plaintiff carries the burden of proof:
1.   Duty of Reasonable care à Was there any duty owed to the P? What is the nature of duty between P and D?
2.      Breach of that duty àDid the conduct justify discharge of duty?
3.      Causation (But for & Proximate) àDid breach cause harm?
4.      Loss (harm caused)
5.      DamagesàNature of the injury and how might it be compensated. What was nature of damages and how do we get P back to where they were before the accident?
Negligence Determination:
What was the standard of care? 
How did ∆’s conduct differ from that of a reasonable person using ordinary care? 
Would a reason able person have foreseen the harm, and what precautions would a reasonable person take? 
BPL Conceptual Tool : “Calculus of Risk”
Learned Hand’s “Calculus of Risk” is only a conceptual tool to make some sense (and try to quantify with economic analysis) reasonableness of actions.
B = Burden on D of taking the precaution
P = Probability that an injury will occur
L = Gravity of the Injury
If B > PL then there is no negligence for performing the action.
If B < PL then there is negligence in the action.   Case Examples: Brown v. Kendall, (Non-Negligent Activity; duty of ordinary care) Two dogs are fighting and the one guy tries to break it up—whacks his buddy with a stick to the eye. Rule: If the defendant used due care in his action, and then by pure accident injury occurred to the plaintiff, there is no blame / liability. Each person owes a duty to behave as a reasonable person would under the same or similar circumstances. The issue is not what the defendant believed, but rather how the reasonable person would have acted. Public Policy: Any damages should be aimed at preventing people from being negligent. However, sometimes bad things happen in life. If a person wasn’t acting negligently when one of those bad things happened, then this is just unfortunate, but nothing more. The old rule distinguished between Necessary and Discretionary Acts o    Necessary act - D must give ordinary care (unless P is also careless) o    Discretionary act - D must give extraordinary care (unless P is careless)