Torts Outline - 2006

Torts Outline - 2006 - I Intro to Tort Liability A When...

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I. Intro to Tort Liability A. When should unintended injury result in liability? 1. Hammontree v. Jenner (1971) a. No strict liability b/c unforeseen medical condition b. If commercial enterprise, maybe negligence. 2. Oliver Wendel Holmes: a. Acts are good. B. Vicarious Liability 1. Christensen v. Swenson (1994) a. Security guard has car accident at lunch b. Vicarious Liability (respodeat superior) i. Employee conduct must be of general kind he was hired for. ii. Must be w/in ordinary time and space of work. iii. Must be motivated (in part) by purpose of serving employer’s interest. 2. Economic justifications for Vicarious Liability: a. It gives employers incentive to choose good employees. b. Employers will discipline negligent employees. c. Employers will consider alternatives to employee efforts. 3. Roessler v. Novak (2003) a. Independent contractor doctor screws up w/ patient b. Independent contractor does not convey vicarious liability c. Apparent agency can overcome that exception b/c public can see apparent authority of parent company. II. Negligence Principle A. Historical Development of Fault Liability 1. What fault liability used to be: a. Trespass – only results from the immediate hurt of one party by another. b. Trespass on the case – results from one party indirectly hurting another. c. Negligence – the exercise of unreasonable care in a situation. 2. Brown v. Kendall (1850) a. Broken up dog fight w/ stick in the eye. b. If unintentional injury occurs while performing a lawful act, and if ordinary care is taken by the injuring party (or if neither party is using ordinary care) while the unintentional injury occurs, there is no recovery entitled to the injured party. c. Reiterates Holmes’ “acts are good.” d. Maybe ruled this way b/c of Industrial Revolution. B. Central Concept 1. Standard of Care:
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a. Adams v. Bullock (1919) [Foreseeability] i. Kid w/ wire on bridge swings it into trolley line under bridge. ii. D was doing lawful business (overhead lines) iii. No negligence b/c location was unforeseeable. iv. If it was foreseeable (like Braun’s dilapidated power line in middle of vacant line w/ buildings around), then negligence would be the case. b. U.S. v. Carroll Towing Co. (1947) [B < PL] i. Bargee not on ship and lines came loose, causing damage to other ships. ii. Negligence occurs when one fails to take precautions that are warranted. iii. B < PL iv. Here, burden was not great (keep bargee on ship during busy hours), but probability (busy time) and loss (ships sink) are great, so negligence. c. (1902) i. Railroad turntable cut off kid’s arm. ii. Don’t get rid of turntable b/c business demands its use, but put lock on b/c B<PL. 2.
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This note was uploaded on 04/19/2008 for the course LAW contracts taught by Professor Sokolow during the Spring '07 term at University of Texas.

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Torts Outline - 2006 - I Intro to Tort Liability A When...

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