Torts Outline (Prof. Smith) Fall 2011
INTRODUCTION TO TORT LIABILITY
1) The central question: how to deal w/ humanly-caused but unintended injuries
a) whether one whose actions harm another should be required to compensate for the harm done
2) Answers to when unintended injury should result in liability
a) Corrective justice view
i) claim that the role of torts should be to punish individuals for their wrongdoing
b) Economic / allocating the costs of accidents view
i) some believe this to be the best view
ii) In life, accidents happen. Sometimes it is somebody’s fault, sometimes it’s not.
(1) Nonetheless, costs are incurred, and social action is taken to remedy these costs.
iii) Can transfer costs to the party that caused them or split the difference.
c) Dispute resolutions / eclectic rhetoric view
3)
1shaped by position and perspective, and presented through historically and culturally conditioned, legally regulated rhetoric (herein of the common law process)
The “law” in tort law
a) Rules
b) Policies / general social goals
c) Rhetoric
d)
1shaped by position and perspective, and presented through historically and culturally conditioned, legally regulated rhetoric (herein of the common law process)
Intuitions1
4) One basic conflict: fault v. no fault
5) Kinds of policies
a) Safety
b) Distribution
LITIGATION PROCESS
1) Attorney of injured (plaintiff) files complaint
a) Complaint states the facts as alleged by the plaintiff, and some sort of legal theory (law) stated as basis for a remedy of the situation based on the facts
2) Accused (defendant) files an answer
a) A disagreement of the facts or the legal theory brought forth by the plaintiff
i) Disagree with the legal theory → usually file a motion to dismiss
3) Discovery in the case
a) Written form is called derogatory; oral form are called depositions
4) Case goes to trial
a) Questions of law are decided by the judge
i) Whether a reasonable person, for example, could or could not decide, upon the facts, what happened in a case, is a legal question, and thus in the hands of the judge
b) Questions of fact are decided by the jury (if there is a jury)
c) The judge will give jury instructions at the end of the trial, and accept them as an accurate statement of what the law is
i) The counsels on both sides submit the instructions that they want read to the jury.
ii) Both sides will try to convince the judge that their instructions are accurate.
5) Verdict is passed down by jury/judge
6) Losing side will appeal
VICARIOUS LIABILITY
The attachment/imputed liability to a D for harm/damages caused by another person in a neg. lawsuit.
Doctrine of respondeat superior: employers are vicariously liable for torts committed by employees while acting within the scope of employment (p19)
Christensen v. Swenson, Sup. Ct. of Utah, 1994 (p18)
1) During lunch break, D1 involved in a car accident w/ P. P sued D1 & employer (D2). TC granted D2’s motion for sum. judg., holding D1 was not w/in ordinary spatial boundaries of her employ. when accident occurred. P appealed, alleging that reasonable minds could differ as to whether D1 was acting w/in or outside scope of her employment during accident. Sup. Ct. reversed & remanded.
2) For an employer to be held vicariously liable for the torts committed by an employee, employee must have been acting w/in the scope of employment
3) Birkner Test (p20), criterion for determining whether w/in the scope of employment:
a) Employee’s conduct be of the general kind the employee is hired to perform
b) Employee’s conduct must occur substantially w/in the hours of ordinary spatial boundaries of the employment
c) Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.
Roessler v. Novak, Flo. Dis. Ct. of App, 2003 (p24)
1) P diagnosed w/ ruptured abdominal organ, went to D SMH. Diagnostic scans were examined by a radiologist, working as independent contractor for Novak/SMH (D). After surgery, P had to stay at hospital for 2 ½ months for complications. P sued D. TC ruled in favor of sum. judg. for D; said no misunderstanding of facts; no legal basis for the claim. Ct. of App reversed & remanded for jury t.
2) A hospital may be held VL for the acts of physicians, even if independent contractors, if these physicians acted w/ the apparent authority of the hospital
a) Three criteria for apparent authority
i) Representation by the principal
ii) Reliance on representation by a third party
iii) Change in opinion by third party as to reliance
3) C.J. Altenbernd concurred: use of apparent agency as a doctrine to determine a hospital's vicarious liability for the acts of various contractors has been a failure
Negligence
· commonly referring to a breach of the standard of reasonable care (SORC)
· Definition recommended in Cal. jury instructions (pp42-43)
o Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under similar circumstances to those shown by evidence.
o It is the failure to use ordinary or reasonable care.
o Ordinary/reasonable care is that which persons of ordinary prudence would use in order to avoid injury to themselves/others under circumstances similar to those shown by evidence
· Neg. is proper approach to accidents: people shouldn’t be held responsible unless they were at fault
Requirements of the P.F. case in negligence
Standard list:
1) Duty (of care): in general, members of society owe a duty to act reasonably to avoid causing physical harm to each other.
a) Exceptional cases arise where courts will question whether an obligatio
ether B is less than L multiplied by P
a) P x L > cost of prevention → neg.
b) P x L < cost of prevention → not neg.
3) Hand: viewed the formula as a way to identify what factors to examine when determining neg; not really to be taken literally, as we rarely have actual mathematically values to assign to the variables
4) Posner: When cost of accidents is < cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to accident victims rather than incur the larger cost of avoiding liability. (pp45)
What about the value of human life?
· The test requires us to assign some value to human life, which may seem troublesome, unethical, and even impossible to some.
· It’s probably a fact that we cannot have and do not want perfect safety, as it is very costly. (Ex. To have perfectly safe vehicles, everyone drives a tank.)
· How much safety do we want? Optimal safety. We don’t want to spend on safety more than the injury cost we avoid. It is argued that the Learned Hand Test gives us that.
Chicago, Burlington & Quincy R. Co. v. Krayenbuhl (pp45-46)
· A group of children were playing on the railroad’s unlocked turntable. As other group was rotating the turntable, plaintiff’s leg got caught and was severed.
· “The danger is insignificant, when weighed against the benefits resulting from the use of such machinery, and for the same reason demands its reasonable, most effective and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger to be anticipated from it. [ ] But the danger incident to its use may be lessened by the use of a lock. [ ] The interference with the proper use of the turntable occasioned by the use of such lock is so slight that it is outweighed by the danger anticipated from an omission to use it; therefore the public good, we think demands the use of the lock.”
Mark Grady's “compliance error”: it is impossible to engage in any high-repetition precautionary behavior without an occasional lapse (p47)
Lord Reid's “substantial risk” (p48)
· perspective on defining reasonable care in Bolton v. Stone
· In the crowded conditions of modern life even the most careful person can’t avoid creating some risks & accepting others. What a man must not do, & what I think a careful man tries not to do, is to create a risk which is substantial.
