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University of South Carolina School of Law
Hubbard, F. Patrick

Torts Outline
text – Franklin & Rabin
prof – Hubbard
I. Introduction of Tort Liability                      
1. The primary concern of tort law – whether one whose actions harm another should be required to pay compensation for the harm done
2. Tort – civil action brought by individual for money damages (compensation) in absence of a contract for cognizable (recognized by law) injury
– Main function of the Tort System is to shift loss from an innocent victim to tortfeasor or insurance company.
– Court wants to restore victim to the same condition they were in before the tort conduct.
When Should Unintended Injury Result in Liability
Courts developed liability rules lying somewhere between no-liability and universal compensation.
Hammontree v. Jenner (Epileptic crashes through bike shop)
Driver suddenly stricken by illness and rendered unconscious while driving is not responsible for injuries caused unless he is negligent for driving.
The doctrine of strict liability does not apply to auto accidents.
Plaintiff requested strict liability rule. Why is negligence better rule?
Strict Liability – liability without fault; breach of absolute duty
Negligence – liability based on fault; absence of due care and failure to take cost justified precautions
Negligence rule gives incentive for everyone to be careful.
Which rule is adopted should depend on what we are trying to accomplish with Tort Law. Whichever rule will accomplish the goal better, should be followed.
The purpose of the fault system is to bring about a set of rules that if applied would reduce the number of accidents.
The Litigation Process
1. Complaint – pleadings
            – Facts on which plaintiff relies
            – Theory plaintiff wants applied to the facts (COA)
2. Defendant move to dismiss (demurrer)
            – Even if true facts do not lead to cause of action
3. Defendant files answer
            – Admit or deny facts
4. Discovery
            – Allow parties to acquire more info (depositions, interrogatories)
5. Motion for Summary Judgment
            – Based on uncontroverted facts, one party is entitled to judgment as matter of law
6. Trial
            – Bench trial – judge presides and is finder of fact
            – Jury trial – either party can request jury
7. Motion for Directed Verdict
            – Aft

punitive damages
                        – Some states allow only one or the other
                        – Legal guardians sue on behalf of minors
2. Defendants
Respondeat Superior
– Christensen v. Swenson et al. (Guard gets in wreck while getting soup)
Employer is vicariously liable for employee’s negligence if acts are within the scope of employment.
There are 3 conditions to determine if employee is acting within the scope of employment:                 1. Conduct must be the general kind employee was hired to do
                                    2. Within the hours and ordinary spatial boundaries of employment
                                    3. Motivated at least in part by employer’s interest
Why have respondeat superior?
            – Spread the loss
            – Protect employee from large liability caused by employment
            – Decrease accidents b/c employer will be more careful about who they hire and