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University of South Carolina School of Law
Montgomery, John E.

Torts Outline
Ch I. Intro to Tort Liability
Model of Tort System:

Unintended injuries:

àcan recover under negligence (b/f recover must prove fault by unreasonable risk. if at fault, morally wrong b/c has chosen risk that could have been avoided.

àcan recover under strict liability: deals w/ things exceptionally dangerous like explosives and poisons, don’t have to prove fault to recover.
1) conducting of abnormally dangerous activities
2) selling of a defective product
3) for dangerous animals

“Accidents”: nothing intentional, no fault (so not subject to negligence), not subject to strict liability
Intentional Torts: Intended Injuries: fault based tort (battery, assault, false imprisonment, and infliction of mental distress)

A) (Hammontree v. Jenner): –seizure caused car accident—car ran into side of a business, causing damage and injuring owners. Driver found not at fault b/c of compliance w/ doc’s orders.
àAll auto accidents are fault based. Strict liability doesn’t apply (as w/ manufacturing) Plaintiff can only recover under negligence.

B) (Christenson v. Swenson, et al):–The guard who left to get lunch.

à(doctrine of respondeat superior)

àVicarious Liability: Employer will be held vicariously liable if the actions are in the scope of employment (this is a form of strict liability)—creates deep pockets and encourages careful screening. –disobedience may not necessarily negate.

Scope of Employment: 1) general conduct of kind hired to perform 2)w/I hours and ordinary spatial boundaries of empl. 3) motivated at least in part by purpose of serving employer’s interest.

C) (Baptist Memorial Hospital (D) v. Sampson (P))—hospital states that its doctor’s are independent contractors, and so not liable under vicarious liability.

àOstensible injury doctrine —- No liability for independent contractors under vicarious liab. unless prove ostensible injury: even if co is independent contractor, if person lets it be known that they are really working for you, then you, the co. will be held responsible for the actions of your indep. contractor. (so it’d be good to let it publicly be known that if they do anything to injure, they will be responsible)­­­­­­­
Ch. II. The Negligence Principle—liability based on fault

Emergence of Reasonable Care Standard:
–plaintiff must prove def. is at fault for failure to use reasonable careàyou failed to act as the reasonable, prude

xication: no exceptions
àelderly: held to same standards of reasonable care as anyone else

6) Customs
–in the Trade/Practice Area: will serve as guidelines (no instructions) to be considered, but no guarantee b/c sometimes customs are used solely for economic reasons.

7) Conduct by 3rd Parties: Special Relationship: a reasonable person possesses at least limited ability to anticipate the conduct of others. Normally, the reasonable person is entitled to presume that third persons will not commit crimes or intentional torts, but if D has a special relationship w/ P, or special knowledge of the situation, then it may be negligence for D not to anticipate a crime or intentional tort. (including when D fails to anticipate another’s negligence)—such as failing to check for license b/f renting out car.

***Don’t forget breach of duty including omissions (failure to warn, for ex)

(A) (Brown v. Kendall):–(D) breaks up a dog fight and in swinging stick hits (P) in eye.