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University of South Carolina School of Law
Walker-Smith, Bryant

Bryant Walker-Smith TORTS Outline Fall 2017
-Tort Law is the set of legal rules establishing liability and compensation for personal injury and death caused by the intentional or carless conduct of a 3rd party
-Tort law established the guidelines on whether a lawsuit is viable
-Primarily deals with accidents
-Goals are to make parties whole through payment and deterrence of tortious actions
-An erroneous finding of liability is better than an erroneous finding of NO liability (Burgess)
Normative – What laws SHOULD be
Descriptive – What the law IS
Leaving reasonableness up to the jury invites different results in similar cases, which in turn leads to concerns about arbitrariness in the tort system and the erosion of public confidence in it.
The judge can step in, but if reasonable minds can disagree, it must go to the jury. The
Enterprise liability allows individual entities to be held jointly liable for some action on the basis of being part of a shared enterprise. Ie manufacturing arm is negligent, separate marketing arm which holds all the profits could be held liable along with the manufacturing arm.
Strict liability à negligence à recklessness à Intentional misconduct
Goals of Negligence Law
Deterrence & accident prevention
Help reduce the level of accidents
Should be sufficient to cover past and future medical care along with future lost wages
Economic efficiency
Proper balance between the risks of harm created by individual activities and the potential liability that can be imposed
Admin efficiency
Guidance to the community and no be unduly costly
Negligence – failure to use reasonable care, resulting in damage or injury to another
Negligent Entrustment
Definition – entrustor held liable for negligence bc they provided the entrustee with dangerous instrument which harmed 3rd party
Gadson 1 – §308 – it is negligence to permit a 3rd party to use a thing or to engage in an activity which is under control of the actor, if the actor knows or should have known that 3rd party would create and unreasonable risk of harm to others
Gadson 2 – Sup Court of S.C elements of negligent entrustment:
owner knew or should have known 3rd party had a history of
family relation doesn’t constitute knowledge of character
knew driver was likely to drive while intoxicated
there is an entrustment of a vehicle by owner to driver
Vicarious Liability (strict liability)
Definition – employer can be held liable for employee’s actions, even if the employer is without fault
Employer employee relationship – depends on the facts, can occur without formal employment (volunteer/Charity).
Independent contractor – do not impose liability on hiring party
Extent of control over details
Control manner and means of performance and outcome
Franchisor – must control the daily conduct or operation of particular “instrumentality”
Distinct occupation or business
Under direction of employer, locality
Skill required
Supplier of instruments
Length of time employed
Method of payment
Part time or regular work
Parties believe they are creating an agency relationship
Employer currently in business
Scope of employment
RULE Conduct of party is within scope of employment. Sunseri
It is the kind he is employed to perform
Occurs substantially within time and space limits
Caused at least in part, by purpose to serve master
Rest of agency §228 – similar to above, 3 prong test
Whether the tort is foreseeable by the general employer
Employers are able to control their employees, thus prevent injuries
Deep pockets to pay for πs damages
Employers are in a position to spread costs of accidents by buying liability insurance and increasing price of products to reflect the inherent costs of accidents
Risks are created for master’s benefit, only seems fair to subscribe the party who is benefiting to liability
Elements of a Negligence case (Prima facie case) burden is on the plaintiff to establish each element by a preponderance of evidence
DUTY- a legally recognized relationship between parties, RULE an actor owes a general duty of reasonable care to persons who are foreseeably at risk from the actors conduct. ISSUE The issue is whether ∆ owed a general duty of care to P as it was foreseeable that
Whether a duty exists is largely a policy based determination. It is a matter of law decided by the Judge, although the factfinder determines foreseeability which helps determine duty.

to the public, and conditions dangerous to persons outside the leased premises
Limited duty to act affirmatively
Generally, a person doesn’t have a duty to act unless:
Misfeasance: A party has a duty to act if their own conduct gave rise to danger. Yania
Special relationships btw ∆&π/3rd party – parent/child, teacher/student, Dr./patient etc. Courts can make these relationships up (co adventurers) Farwell
Judges are reluctant to add duties, they expand by adding more special relationships
Voluntary assumption – the “saver” has assumed the duty by beginning aid
Once assumed, must act reasonably
Can’t leave person in a worse off position
Courts are quick to show aid has begun to broaden rule
D caused P to rely on gracious promise –
A promise creating reliance MAY give rise to a duty, courts go back and forth on this issue.
P must link injuries to ∆s actions
Nonfeasance – generally courts stick with a no duty rule where a person’s actions have nothing to do with the injury.
Moral duty is NOT the same as a legal duty
This would put a massive restraint on individual liberty
Some states do have good Samaritan laws (NH)
Limited duty to control 3rd party actions
An extension of special relationships
A therapist owes a duty to a party when they become aware or under professional standards should know that a patient poses a risk of serious danger to that party. Tarasoff
An unnecessary warning is better than a loss of life
The duty only extends to victims that are identifiable. Dunkle OR all foreseeable victims (depends on jurisdiction)
Some courts have imposed a duty on commercial suppliers of liquor and social hosts to prevent a 3rd party from driving drunk.
Very controversial, courts have gone from no duty to some imposing a duty due to the carnage from drunk driving.