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

Torts Outline
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
– After one party finishes argument
– Same as summary judgment, just more facts
8. Jury returns verdict
9. Request Judgment n.o.v. – judgment notwithstanding verdict
– One party thinks that based on facts no reasonable jury could rule against them
– There is no evidence to support the verdict
10. Judge enters judgment
11. Appeal
– Appellate must argue a mistake of law was made
– Cannot claim factual error

The Parties and Vicarious Liability
1. Plaintiffs
– Death of plaintiff
– Under old common law, suit was terminated
– Survival Action – lawsuit survives death of plaintiff
(Able to recover anything the p would have recovered has he survived)
1. Pecuniary losses by victim
2. Victim’s non-pecuniary damages (pain & suffering)
3. Sometimes punitive damages
– Wrongful Death – brought by beneficiaries
(p would have benefited if decedent had lived; losses caused by the death)
1. Pecuniary losses by beneficiary
2. Beneficiaries non-pecuniary (lost companionship)
3. No damages for victim’s suffering
4. No 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
how they train
– Employer in better position to pay, so victim more likely to recover damages
Right to indemnity – If employer is held vicariously liable under respondeat superior, employer has a case against the employee
Clark v. Pangan – D got into fight over business matters while at work and 3 prong test of res. sup. was applied even though an intentional tort
*Foster v. The Loft – p customer at D’s bar was punched by a bartender with criminal history of assault and battery with a knife
Employer may be independently liable for his negligence in hiring an employee who may commit a tort even that employee was not acting within the scope of his employment. (Holds employer responsible for the act of hiring)

Ostensible Agency
defined – an implied or presumptive agency, which exists where one, either intentionally or from lack of ordinary care, induces another to believe that a 3rd person is his agent, though he never in fact employed him
– Normally, principal is not vicariously liable for actions of independent contractor. The exception is ostensible agency (apparent agency, apparent authority, and agency by estoppel).
– Purpose is to prevent injustice and protect those who have been misled.
Baptist Memorial Hospital System v. Sampson (MD negligent to spider bite victim)
Principal is not vicariously liable for the actions of independent contractor when the principal took no affirmative action to make people believe that the independent contractor was an employee and actually took reasonable actions to inform them of such.

Restatement of Agency – p must have justifiably relied on D’s affiliated association. (If he would have gone anyway if he had known, D loses.)
Restatement of Tort – Need only statements that suggest independent contractor was agency employee. Justifiable reliance is not required.
Courts are split. Some require justifiable reliance (Agency). Others don’t (Tort).

Valenti (patron sued mall after she slipped on a snow covered entryway)
independent contractor was supposed to handle maintenance
– BUT there are policy concerns about letting businesses shield themselves from liability this way and
– they are in the best position to protect against risk

II. The Negligence Principle

Negligence – lack of due care under the circumstances; failure to take cost justified precautions; Failure to exercise the standard of care that a reasonably prudent person would have exercised in the same situations (or do something that a reasonably prudent person would not do)
Elements of Negligence:
1. Duty owed to P to exercise due care
2. Breach of duty by D
3. Causal relationship between D’s conduct and harm to p (actual and proximate cause)
4. Damages

A. Historical Development of Fault Liability
Purpose of the Tort System
a. Efficiency objective – minimize costs
i. Expected accident cost
ii. Costs of avoiding or insuring accident
iii. Cost of administering legal system

Brown v. Kendall (Fighting Dogs)
– When a party is not engaged in criminal or intentional conduct and injures another party, it is the injured party’s responsibility to prove the defendant was not using ordinary care. (D has to do it intentionally or negligently – fault principle)
The burden is on the plaintiff to show negligence.
Why? Shift burden to plaintiff in order not to inhibit entrepreneurs from starting
risky business ventures (ie. Railroads).
Doctrine of Contributory Negligence – If plaintiff was also negligent, plaintiff loses. Plaintiff also has to use ordinary care. (Not the case anymore – com. instead of contrib. – this case was from 1850)

tting a lock on it, the interference is so slight that it is outweighed by the potential accidents anticipated by omission of the lock.

The Reasonable Person Standard (in those particular circumstances)
Bethel v. New York City Transit Authority (Wheelchair accessible seat collapsed on the plaintiff.)
Previously, common carriers were held to a higher standard b/c of the large # of accidents on railways. But now, w/ technology and governmental regulation, public transportation is at least as safe as private modes. Therefore, the reasonable care standard could be applied to common carriers now as well. AC>SC=Negligence

Reasonable care theory – In order to be found liable for negligence, the party must have acted with less care than a reasonable objective person under the same circumstances.
Reasonable care standard
1. Based on the conduct (not intentions) of the defendant.
2. Conduct is measured against an objective, external norm.

For average person, how costly would precaution be? Even though for one it might be very costly, one is still held to standard of average person. Below average people are still held to ordinary person standard.

-Using subjective standards, one must determine the capacity of the individual.
-Cost of administering objective standard is lower than for a subjective standard.
-Using objective standard may reduce socially damaging activity. (When below average people are held to average standard, they may not engage in the activity.) No such thing as the reasonable dumb/clutzy person. Person is no less hurt.

Exceptions to Reasonable Person Standard:

Above average capacity, superior attributes (Expert) is held to higher standard.

Reasonable person standard established the floor; you may have to do more if your ability is higher.
Reasonable doctor or lawyer

When disability is large, obvious and palpable (not hard to determine capacity)

Ex. Epileptic, Child, Blind

· Children – Treated differently
3 categories:


reasonable child


– disagreement in jurisdictions about exactly what age
– disagreement about activity/situation
– driving a boat, car, or plane – one cannot know the operator is a minor and therefore cannot take steps to protect himself against youthful imprudence (adult activities = adult standard)
– but driver’s ed course = minor activity
– child standard when all age activity like skiing
– Held to standard of reasonable child
– If child is engaged in adult activity, he is held to adult standard.
– In most states, child below a certain age (usually 7) is not capable of negligence. Between 7-14 presumption is rebuttable, but child is still presumed to be incapable of negligent behavior.
– Parents are generally not vicariously liable for the torts of their children except for intentional torts.
– Negligent Supervision – Parents can be found individually liable for not controlling their children or by allowing them to do something beyond their ability. Otherwise, usually not liable – unless a modest amount.