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University of South Carolina School of Law
Smith, Bryant Walker

Tort Law- a set of rules regarding liability and compensation for personal injury, death, and property damage that one causes to another.
Tort- when a civil wrong happens and in which injury occurs to another
Can also be criminal
Negligent Entrustment
Negligent Entrustment- involves employer being negligent in some way
Vicarious Liability- involves negligence of employee that employer is held accountable for
Gadson v. Eco Services
Facts- Jenkins allowed cousin to drive his work truck supplied by ECO Services with other passengers after the cousin had had one or two wine coolers. The cousin sped at 80mph and crashed, throwing Gadson and others from the car resulting in injury.
Rule- Negligent Entrustment Elements:
Knowledge of or knowledge imputable to the owner that the driver was either addicted to intoxicants or had the habit of drinking;
The owner knew or had imputable knowledge that the driver was likely to drive while intoxicated; and
Under these circumstances, the entrustment of a vehicle by the owner to such a driver.
Holding- Having a drink or two is not the same as having a habit of drinking or being addicted to intoxicants, and just because you are cousins doesn’t mean that you have knowledge of your cousin’s habits. Not negligent entrustment.
Functions and Goals of Tort Law
Deterrence of unsafe activities
Creation of duties can enhance deterrence of conduct that involves risks of harm
Denial of duties can ensure that certain activities/persons are not unduly burdened
Financial responsibility can act as an incentive to safe conduct
Criminal and regulatory law also create incentives.
Compensation for injured victims
Encouragement of economic growth and progress
Avoidance of Undue Burdens on Economic Activities:
Doesn’t want to discourage economically valuable activities.
Manufacturers and producers can adjust prices and more likely to purchase insurance
Legal administrative efficiency
Whether the defendant’s conduct was wrongful
Does justice require a remedy
Culpability Spectrum
Intended Harm: Intentional Torts
Actions such as batter and assault
Willfulness- purpose or desire to cause harmful or offensive contact with another
Compensatory damages are available; possible punitive damages
Unintended Harm
Strict Liability
Responsibility based on causation without regard to fault
Some claims require actual knowledge or foresight of risk
Used for abnormally dangerous activities, harm from dangerous animals, injuries from product liability manufacturing defects, and occasionally where a special criminal statute has been violated
Unintended harm from accidents
Unreasonable conduct that creates foreseeable risks of harm
Evaluated against a social norm based on what a reasonable person would have foreseen and done under the circumstances
The plaintiff must prove that she has sustained actual harm that is legally protected
The plaintiff must also prove a causal connection between the injuries and the defendant’s unreasonable conduct
Used as the basis for liability in almost all accidents
Unreasonable conduct that creates foreseeable risks of harm
Compensatory damages available; no punitive damages
More culpable than negligence- falls between intentional torts and negligence
Conscious disregard of a high risk of serious harm
Requires a mental state of mind
Possibility of punitive damages
Personal Injury Damages Overview
Medical expenses (past and future)
Earnings losses (past, future, and loss of household services)
Pain and suffering
Loss of consortium
Life expectancy
Work-life expectancy
Wrongful death damages
Punitive damages
Attorney’s fees
Vicarious Liability- where one party is liable for the negligence of another party by reason of a relationship between the parties.
Two elements: (1) the existence of an employer-employee relationship and (2) conduct by the employee acting within the scope of employment at the time of the accident.
POLICY: Why hold an employer liable for the negligent conduct of an employee?
Control of Conduct- employee controls employer
Accident Prevention- education programs, etc
Spread of Costs- insurance/costs of services
Fairness- work performed for employer’s benefit
Business Enterprise- inevitable accident losses should be business expense
Assuring Compensation- employers more likely to have liability insurance
Employee or Independent Contractor
Employee- in this instance is a person who performs services in affairs of another and is subject to the other’s control and right to control.
Independent contractor­- one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person whom the work is done only as a result of the work as to the methods or the means used.
Franchisor- must control or have or have right to control the daily conduct or operation of the particular “instrumentality” that is alleged to have caused the harm before vicarious liability may be imposed on the franchisor for the franchisee’s torts.
Kime v. Hobbs
Facts: Yelli, an independent contractor truck driver for Hobbs, injured Kime in a collision caused by Yelli.
Rule: 10 factors to be considered in determining whether someone is an independent contractor:
Independent Contractor v. Employee Factors to be considered (Kime)
The extent of control the employer may exercise over the details of the work. MOST IMPORTANT
Whether the one employed is engaged in a distinct occupation or business- guy is specifically bricklayer and only works for one guy v. another guy who comes over sometimes and does odd jobs- independent contractor who doesn’t have one specific job he does on regular basis
Level of Supervision (whether the work is traditionally done under the direction of the employer)
The skill required
Whether the employer or the one employed supplied the instrumentalities, tools, and the place of work for the person doing the work
The length of time for which the one employed is engaged
Method of payment  (either by time or by job)
Whether work is part of the regular business of the employer
Whether the parties believe they’re creating an agency relationship (special relationship you have with someone when you represent them).
Whether the employer is or is not in business
Holding: A person who occasionally makes deliveries for another is an independent contractor.
Independent contractor- employer has control over the end product
Employee- control over means and methods is with employer
Independent Contractor = no vicarious liability rule:
Rule: General rule is that there is no liability for the negligence of an independent contractor
Exceptions – hiring party can be held vicariously liable for:
Inherently dangerous activities
Examples: construction of large buildings, maintenance of utility wires, crop dusting, construction of a dam, demolition
“Non-delegable” duties
Examples: duties imposed by statute or contract, duty of a common carrier (transportation) to passengers, a city to keep its streets in repair, a commercial business to keep premises reasonably safe for business visitors, a landlord to maintain common areas
Scope of Employment
Even where an employee is negligent, in order to hold the employer liable, the plaintiff must show that the employee was acting within the scope of employment at the time of the accident.
Pyne v. Witmer
Facts: Witmer stayed after work to take a mechanic

plaintiff must be connected with or personally known to the defendant for duty to exist
Duty: arises out of the recognition that relations between individuals may impose upon one a legal obligation for the benefit of the other.
Breach: the test for whether defendants’ conduct was negligent is whether there was a foreseeable and unreasonable risk of harm from that conduct.
Cause in fact: the plaintiff must show a reasonable connection between the defendant’s act or omission and the plaintiff’s injury or damages.
Proximate cause: only need probable facts
Reasonable Care
The measure of duty owed in most negligence cases is that of a reasonable person under the same or similar circumstances.
General rule: An actor owes a duty of reasonable care under the circumstances to those persons who are foreseeably exposed to physical risk arising from the actor’s conduct.
General Characteristics
The reasonable person standard is objective- jury evaluates conduct, not state of mind
Reed v. Tacoma RY. & P. Co.
Facts: Plaintiff’s daughter thought that she had time to drive on railroad tracks and off again before being hit, but did not and was hit by defendant’s train car.
Rule: Reasonable person- did the person act as a reasonably prudent person would have acted under similar circumstances?
Holding: Error in judgment is not necessarily negligence because it does not necessarily mean that the person was not acting as a reasonable person would in similar circumstances.
Reasonable Men and Women
This standard is not supposed to be an influence, but there is still subtle gender bias in court decisions.
Edwards v. Johnson
Facts: ∆ was home alone with her kids at night when a friend came to the back door. ∆ got the gun and went to open the curtain with the tip of the gun to see who it was and accidentally discharged it, injuring the π.
Rule: No women’s standard of care.
Emergency Doctrine
An  unforeseen  combination of circumstances which calls for immediate action;
a perplexing contingency or complication of circumstances;
a sudden or unexpected occasion for action, exigency pressing necessity
Allows a fact finder to excuse a Δ’s failure to obey statutory law when confront with an emergency not of the Δ’s making.
A person confronted with an emergency not of their own making who is confronted with an emergency is not chargeable with negligence if that person exercises a degree of care which a reasonably careful person would have exercised under the same or similar circumstances.
Foster v. Strutz
Facts: Foster’s foot was crushed between a truck and a car when the truck tired to flee the scene with the car in reverse due to circumstances.
Rule: A sudden emergency is defined as:
An unforeseen combination of circumstances which calls for immediate action;
A perplexing contingency or complication of circumstances;
A sudden or unexpected occasion for action, exigency pressing necessity.
Holding: 10-15 seconds is enough time to assess a situation and is therefore not a sudden emergency.