Torts II Outline
Criminal
Civil
Law
Public (govt charges against people)
Private (btwn private parties), bc of duties imposed by the state, drive reasonably
Remedy
Can lose life or freedom
Money, injunction
Tort= civil wrong not arising out of contracts. Difference is autonomy. K, voluntarily assume obligations.
Intentional torts
Negligence
Strict liability
small group- bad things being done by bad people
largest group- acting like a fool
Smallest group- no fault involved
Corrective justice: fixing a moral wrong, morally bad behavior injured another person, balance the scales, in torts you cant fix the injury most of the time, payment for the autonomy that is lost
Deterrence: internalize the effect of their behavior, want to stop people from acting in certain ways, smack them by paying money to someone else, incentive
Compensation: victim orientated, based somewhat in the need of the victim, also tied very closely to what is called loss spreading, large number of people can accept a loss better than one single person, like an insurance theory, so many torts judgments are covered by insurance. A lot of tort ds are corporations or insurance companies, can deal with a loss better than a single person
Negligence Q: What to do When Unintended Injury Results in Liability? (Intentional easy: make person pay for wrong)
Do nothing, let the losses fall where they will
The govt could set up completely comprehensive compensation scale (anytime injury or sickness, govt pays) costs are enormous
compensation system (New Zealand) for only those acts made by human agency
We don’t do any of these things, rather take a middle course.
The fundamental issue addressed by a system of tort liability for unintended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation
A driver who is stricken by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge is not liable for damages to plaintiff (CJ: no moral shortcoming, Det: over-deter drivers, Comp: yes)
Tension between negligence and strict liability
Strict liability rejected as a possible solution
Holmes
Acts are good and necessary, why impose strict liability on acts, don’t want to deter acts
Posner
Function of negligence rule – efficient level of activity (economically efficient level of activ
uble
Negligent Supervision
Basic rule is that a principal cannot be liable unless there is an agency relationship, employer/employee. Like independent contractor. Difference legally is the ability to control. If you are an employee, they can tell you what to do and how to do it.
Independent contractor is diff bc you tell them what to do, but not how to do it. You are in fact hiring them for their expertise. Exceptions to independent contractor rule: Apparent authority/apparent agency rule and non-delegable duties.
Generally a principal cannot be held vicariously liable for the acts of an independent contractor unless there is apparent authority/agency
Apparent Authority/Agency
Where the principle creates an appearance of an agency relationship:
(a) a representation by the purported principal(that the putative agent was an employee or agent of the principal);
(b) a reliance on that representation by a third party; and
(c) a change in position by the third party in reliance on the representation.
Non-delegable duty – duty that cannot be contracted/delegated away. If it applies a principal will be held liable for an independent contractor’s actions. Ex. a lot of juris make Drs/nurses/workers in ER non-delegable duty. Shopping mall has non-delegable duty to keep parking lot and roads clean (they are rare).
