Torts-Kaye

(check for conclusion)Which is the better explanation for vicarious liability: the "master's tort" theory, or the "servant's tort" theory?

a. "Master's tort" theory = theory that the master/employer is being held vicariously liable because they did indeed commit the tortious action through their employee b. "Servant's tort" theory = theory that the responsibility for the servant/employee's tortious actions are being put on an essentially blameless third party (the master/employer)

(CHECK) Should property law always defeat tort law

a. Again, always is a strong word - it depends on the circumstances b. Property law is all black and white which doesn't generally give you the opportunity to dispense justice whereas torts gives you the flexibility to review the facts of a case and then dispense justice in that way

12. Is what Weber would have called a "formally rational" system, like that of civil law systems, inherently superior to other systems of law?

it sets out rules that you know about ahead of time rather than finding out the rules after the fact when a judge/jury determines it, so It appears that Weber would view a "formally rational" system as an inherently superior system of law . However, a civil system may not change and evolve with the times as a jury may reflect in a civil system.

8.6 In Bernier v. Boston Edison Co., it is clear that Edison was not expected to have foreseen the particularly convoluted series of events that actually occurred. So (a) what was it expected to have foreseen, and (b) what action was it then expected to have taken?

Mitigate the harm. Use the near misses to inform the reevaluation of risk assessment. a) That a low speed vehicle was likely to hit it and with the design they used, likely to topple it and that could cause serious injuries. (b) To design and use a pole that was less likely to topple when hit at low speeds.

Breach of Duty

Element of negligence, which requires that the plaintiff prove that the defendant failed to live up to the requisite standard of care. If they didn't meet this standard, then it is a breach of duty. A finding of breach means that the defendant behaved unreasonably in the circumstances. Breach therefore signifies that the defendant was at fault. This is normally a question of fact for the jury.

In Loco Parentis

For schools and teachers; treat students as a reasonable parent would

Was it right that tort law doctrine in J'Aire be allowed to provide the plaintiff with a means of circumventing standard doctrine of the law of contracts?

J'Aire is a third party to a contract between the county of Sonoma and the contractor (Gregory)Duty of Care - Gregory failed in their duty of care towards J'Aire. The special relationship between Gregory and J'Aire is very similar to a contract, but is not actually a contract - the special relationship and the failure in the duty of care allowed the law of torts to step in and provide an exception to the law of contracts. would have been unjust to allow tenets to pay the price for a contract that effected their business even if they were not a party to the contract. The doctrine of contracts would have given the plaintiff no remedy. `

8.12 What is the main practical effect of the doctrine of res ipsa loquitur?

Physical injury was under control of defendant over the injury. Injury wouldn't happen without negligence. That plaintiff did not contribute to its own injury. The defendant has not produced a reasonable explanation. (Dani's Dad). Vulnerable victims who could not receive compensation can. Compensation is the goal.

8.4 Can a defendant ignore any of the risks associated with the act s/he is performing?

The point of risk assessment is to know what risks you can take and how to manage them. If the defendants risk assessment is not low/low then they did not meet the standard of care and breached their duty. Make a record of your risk assessment so you can prove that you looked at it/are a reasonable person.

Factual Causation

The requirement that the plaintiff establish that the defendant's conduct was the actual cause of the plaintiffs injury. Establishing a causal connection between the defendant's breach of duty and the victim's harm. NO FORESEEABILITY!

What did the CL in England originally replace, and why?

Unwritten local customs that was replaced with common law so as to be consistent from place to place and to enable the king to more easily collect taxes and maintain order/enforce the laws.

Causation

Very difficult for the plaintiff to establish that the defendant caused the injuries. Courts also have been using this term interchangeably. Don't use this term!

Should the study of law be treated as science?

Yes : b/c you use something similiar to the scientific research process. question (issue) research (cases) hypothesis (persuasive argument) test (in court) result/conclusion (holding) But no: because there is no "exact measurement" and decisions are often more based on subjective reasoning then objective reasoning

(CHECK) Is the "close connection" test in Lister effectively the same test as the "characteristic activities" test in Taber?

"Close connection" test (UK) = "a master ... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes — although improper modes — of doing them" "Characteristic activities" test (US) = even if the precursory act is not committed during sanctioned employee duties, if it is a "characteristic of [the job's] activities" then it would be seen as being done within the lines of the employee's duties practical area where the two tests are not the same - the first time something happens it is not a characteristic activity, but that doesn't matter with close connection e. Do these tests basically close the gap between non-delegable duties (primary liability) and vicarious liability? i. Yes, because the employer is becoming more and more responsible for the behaviors of their employees whether or not they are actually acting within their job description ii. Canada did this completely because it allows the victim to be compensated no matter what

Children Standard of Care

(Appelhans - 5 year old rides bike into the back of a lady). Minimum age that a child can be found negligent and the courts determine it on a case-by-case basis. Held to the conduct of a reasonable person of the same age and experience, not of an adult. If participating in an adult activity they are held to the same standard of a reasonable adult doing that activity.

which other counties in the industrialized world share the same system of law, and which did not?

(Germany, China and Japan) (France, Russia,) (Spain and latin america) are civil. Common law systems can not be transported that way. CL - England, Australia, New Zealand, Hong Kong, India South Africa has a mixed system because of the dutch. Scotland had a civil but because of England they now have a mixed system. Pakastan says they are a common law system. If in a city, then yes, common law. Religious law if in the country. Columbia is changing it's criminal system from civil law to common law because of the drug cartels. America gave them enough money to change with the condition that they changed. The system is too corrupt.

Section 10(b) of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.

(a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c). (b) A child less than five years of age is incapable of negligence. (c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

8.11 With which overall objectives of the law of torts are (a) cost-benefit analysis, and (b) the doctrine of res ipsa loquitur most closely associated?

(a) Deterrence works good here, if the risk outweighs the benefit, people will be deterred from doing that harmful action. Also, problem is that this makes people put a value on people's life. everything goes in dollar amount or you can't calculate. (b) Compensation.

8.14 Should the doctrine of in loco parentis apply (a) to K-12 schools, and their teachers, and administrators; (b) to colleges, and their professors and administrators; and (c) to graduate institutions, and their professors and administrators?

(a) Loco parentis is someone acting in the position of the parent. Examples would be teachers, CO, coaches, babysitters, dr. delivering babies. However, this term can be very subjective. There are many different parenting styles, and people in loco parents role may display different styles. This doctrine may be difficult to fulfill efficiently because of the large amount of students these people have to oversee. Parents usually aren't having to look over 30-35 children at the time. This doctrine carries alot of obligation that may be very difficult because of the number of pupils. But either way, we continue to treat teacher K-12 under the loco parentis doctrine and not like professionals. The law hasn't moved this way b/c society doesn't see teachers a professionals. And we unfortunately set a high standard on teachers even while not viewing them as professionals. (b) Professors in colleges should not be acting in loco parentis because most of the students are legal adults (18 or over), and there parents are not even acting in a supervisory role anymore. in the 80's and 90's these institutions had a loco parentis role, but it shifted due to high rates of law suits against the institutions by students. so they wanted to shift from this. But the law is beginning to treats them as loco parentis again. Sexual assault and hazing on college campus has made colleges want to regain the loco parentis role they had a couple decades ago. The cause of these two things are fraternity. Because the students that are a victim to this could sue if the university did nothing. And all because they had no power to do anything about it because they no longer have in loco parentis. (c) Professors in graduate institutions; it is not clear if they are. some jurisdictions differ.

Risk Management Policies

(a) to make moments of thoughtlessness less common, either by forcing individuals to think through what they are doing more carefully or by making reasonable conduct a matter of habit or routine; and (b) to provide a system of monitoring, supervision, or peer review which will act as a sort of "failsafe" system by enhancing the chances of detection of someone's carelessness before it has the chance to cause anyone significant harm.

Duty Owned to Invitee

1. Make reasonable inspections of premises; 2. Take reasonable steps to keep invitee safe while on premises; 3. Warn of dangers that are not obvious, and provide reasonable guidance on how to avoid them

Duty Owed to Trespasser

1. NO duty to inspect; 2. Avoid causing wanton or willful harm; 3. NO duty to warn, except in order to avoid causing wanton or willful harm.

Duty Owed to Licensee

1. NO duty to inspect; 2. Take reasonable steps to keep licensee safe from dangers on the premises about which the possessor knows or ought to be aware; 3. Warn of known dangers that are not obvious, and provide reasonable guidance on how to avoid them.

Attractive Nuisance Doctrine

A doctrine treating a child as a licensee, or guest, rather than a trespasser on land having something that would entice children onto those premises, unless the landowner takes reasonable steps to hide or prevent access to the attractive nuisance.

Firefighter's Rule

Barring torts brought by anyone who is injured while effecting a rescue as part of their job (Wagner - Cousin rescuing cousin who's thrown from a train, gets injured)

why is the CL so called?

Because it was common to the whole of England. Common law is the law of the king.

How and why is the availability of insurance fundamental to the operation of the law of torts? Is this is a good thing?

Because most often, the person who caused the tort act is not the one to pay compensation because insurance does it. It is generally a good thing because the victim gets compensation higher than a single person could pay.

Why is the meaning of CL somewhat ironic so far as the USA?

Because one, we now have very different laws than England. And also, because some States have very different laws than others. It is not common/uniform to all. 50 1/2 common law systems in our country. 50 state common laws and 1/2 (federal system) Federal is 1/2 for tort law in that if not federal question, then they use the state law. There is no federal tort law unless there is a tort act passed by congress. No federal tort common law. in case the tort issue involves a constitutional issue. It's 1/2 because of federal rules of procedural which is not the same as state rules. Can lead to different results even when substantive law is the same. (Certain evidence is or isn't admissible in fed court) This is particular important in the law of torts because the biggest issue between P and D is not the evidence, it's about whether or not there will be a trial at all which is sometimes based on procedure. Look to see if the doctrines are decided by the court or by the jury. Tort law is just as much about who gets to decide instead of ...

What other systems of law are there, and what is distinctive about them?

Civil law makes about 2/3 of the world. Its a series of systematic uniformed codes. It establishes general principles that can be applied, like the USC. It's already capable of dealing with everything in the field, but its not very detailed or fact specific. Judges are given the same training in order to maintain uniformity. Unlike CL; where there's decisions set by appellate and higher judges, where they have to wait till something happens then do something about it (dog law-Jeremy Bentham)

(CHECK)What were the relevant policies at stake in Scibelli?

Compensation for the injured child; the economic efficiency ramification of telling this company they were wrong and how this will affect other companies; Retribution (what does the company deserve) - since the RR company didn't do anything wrong, then there is nothing to punish; Boundary Maintenance - where do we draw the lines between right and wrong behavior, is something right just because that's how it's always been, what level of conduct is right and wrong for a train company

8.13 Does the development of new technology increase or decrease the likelihood of the practice of so-called "defensive medicine"? Is this a good or bad thing?

Defensive medicine is the practice of doctors doing medical procedures solely for the purpose of reducing probability of liability. We have sensitive technology now that can monitor one's health. ex. fetus heart rate. So if they even see there's a discrepancy in the monitor, and they would just induce the pregnancy through C section to prevent being held responsible for not doing something. So I would say it increases the likelihood of defensive medicine. Its a bad thing, because people may have to undergo certain risky medical procedure and test they otherwise wouldn't have had to because the doctor wants to avoid probability of litigation.

8.8 Are judges deferential to skilled people? Does it matter? Why (not)?

Deferential means that the judge behaves as if a professional should be believed. A judge can put them self in the shoes of a regular person. But cannot as well for skilled people/experts. So skilled people basically make up their own rules and standard of care. However, the insurance company ends up making the standard of care. Restricts innovation. Did the defendant know of should reasonably have known if the plaintiff has a disability? The standard of care is reasonableness; lowered in circumstances with children. Who is determined to have to know? Who informs them of the risks that could arise? Yes, judges are deferential to skilled people.

Reasonable Patient Standard of Care

Doctor is required to disclose all risks to allow a reasonable person to make an informed decision. Consent that must be obtained from a conscious and capable patient before a medical procedure can be performed.

Is the concept of vicarious liability justifiable? Should employers be vicariously liable for the tortious acts or omissions of independent contractors?

Employees-I think yes because many times tortious acts or omissions is a result of poor training, bad decisions on the part of the employer, or a work atmosphere that is a result of their decisions. Independent Contractors - I think it depends on the nature of the business. In the case of hospitals, where it seems to me they set up their contractors as a way to avoid liability, yes. Maybe in another business, no. Since the remedy of compensation more or less relies on the concept of vicarious liability it seems like a system has been created that relies on both in order to function. Since the employee, or independent contractor in this case, is the agent of the employer (the principal), the employer should be liable for any actions carried out by their agent on their behalf. It was the employer's decision to hire the employee therefore they are responsible for both the good and bad actions of that employee. Historically, the concept of vicarious liability is based on a relationship whereby the ship captain needed to rely on all of the crew members in order for the survival of the entire crew. What about vicarious liability where a car owner is liable for the actions of anyone they let drive their car? This has become necessary in order for the owner's auto insurance to cover anyone who drives the car - this way if the secondary person gets into an accident then they are covered

Reasonableness

Essence of standard of care. Trying to have jury members apply their own, ordinary life experiences to work out collectively what should normally have been done by the defendant.

7.1 1. Should the attractive nuisance doctrine have been applied in the case of Scibelli v. Pennsylvania Railroad Co.?

Facts of the case. Definition of Premises Liability. Definition of attractive nuisance doctrine. Definition of foreseeability. Kids are attracted to trains. Train company should have foreseen children wanting to play on train. Kid was very young, minor trespasser. Transform him into invitee by attractive nuisance.

If a nightclub bouncer beat up someone with whom he had a disagreement while the latter was attempting to enter the nightclub, would the club be vicariously liable for the battery committed by the bouncer?

I say yes because it was at his place of work, while he was on duty and it occurred while the victim was trying to enter the club which is the part of the job a bouncer oversees. The bouncer is acting within his job description. there could be an argument as to what exactly the disagreement was regarding. The bouncers job is to direct people into the club, removes those who are a nuisance, and control who being admitted (age). However, most bouncers have subjective discretion to remove people from clubs based on if they are a "nuisance", and that's a subjective standard. Therefore, if the victim could show that the bouncer abused his discretion or was excessive in his force, he could be seen to have been working outside the parameters of his job. his job is not too harm others, however harm may occur when he's doing his job, he cant just hurt whoever he wants. The disagreement may not be in his job duties, and so therefore the resulting battery may not be as well.

(CHECK) Should US jurisdictions adopt the approach of the Law Reform (Vicarious Liability) Act 1983 in New South Wales, Australia?

I think that the Law Reform Act makes it very clear who is liable and when - I feel that this is logistically a better way of handling employer/employee vicarious liability issues because there is less of a question about who is liable and when

7.5 Should the "firefighter's rule" be retained or rejected?

If someone is engaged in their employment, and that employment involves a risk, and that person is hurt in the line of their work. They accepted the job and they are being paid for it. If they are getting paid for reusing someone, well if they didn't want to take that risk, get another job. Rescue doctrine means that someone is being put in danger; unlike doctors and paramedics where it is somewhat obligatory.

8.1 1. Why are standard of care and breach of duty judged objectively, and not subjectively as in criminal law?

In a criminal case it is government vs. a private entity. If you were to use a subjective view in torts it would be bad because there would be an obvious bias. Subjective has to do with mens rea and what they knew and intended. Standard of Care and Breach of Duty do not depend on mens rea. Hence negligence. Why is there a difference? (1) Because you can evaluate risk better, and if you judge objectively, there is predictability. If it was subjective, everyone would have a different idea on what is appropriate. (2) In torts, there is always a loser, therefore, you must look at both sides. In criminal law, you are only looking at one party. In torts, you have two parties who both have rights. (Prosecution does not have rights like an individual) Subjective DOES NOT mean biased and Objective DOES NOT mean unbiased. Objective means looking at both sides. Did the defendant act reasonable? You never breach a standard. It's breach a DUTY.

(CHECK) Would Lister be decided the same way in the US?

In the case of teacher misconduct, serious sexual misconduct the teacher is held individually liable whereas the school is not held vicariously liable except in the court of public opinion

Prudent Patient Standard of Care

Informed consent standard that, if the patient asks more questions, the doctors are obliged to answer truthfully (the more questions asked, the higher the standard).

What is the distinctive about the common law system?

Judges effectively make the law and make the law AFTER the events occur. Although it is irrational, it is calculable. They can make laws that weren't there before because we do not have a strict codified system in place. Why do they have this power? - In civil systems, general principles are made, never have an incident that isn't covered. Effect - Judges in common law can take outside circumstances into account more than civil judges. What is the difference between a civil code and a statute? CL- other than constitution, there is no place where general principles are written as law. Specific laws that apply to specific facts. No judge faced with a new issue knows what the answer is. So how do we know what the answer is? We don't. It's whatever answer prevails over time. Is one better than the other? Don't civil judges still have to interpret what is "reasonable" Well no, in practice in civil systems (all judges are appointed) no principle of precedent, no reporting of cases. Doesn't explain the courts reasoning. In civil systems, you go to judge school. They all go to the same place and that's why they stay consistent. And they are anonymous, even supreme court. Usually no juries, judges get to decide basically everything. Very predictable. Far less trials because both sides know what the answer will be.

8.7 Do the age, gender, race, disability (if any), locality, and/or actual or advertised qualifications or expertise of the plaintiff and/or defendant make a difference to the test for the standard of care which is applied in any given situation?

Law of torts is looking at the plaintiff for the majority of the time. For Plaintiff: age does matter in the lower end but not at all. For older people, there is no distinction; they are all treated the same. For Defendant: young people: attractive nuisance comes into play; older people=elder fraud, they're more vulnerable of being taken advantage of, medical malpractice. Sex and race definitely matter on the side of the plaintiff. A doctor should know the gender and race of their client or they won't get proper care. The test is the same, but the standard varies based on the test. The standard of conduct is measured by age, intelligence, and experience under like circumstances. This is not a fully objective standard.

Risk Assessment Chart

Likelihood of Harm vs. Likely Severity of Harm. Some foreseeability is needed in assessing standard of care because without foreseeability, it would be impossible to figure out what should be done to manage or improve the risk. Foreseeability is only required where highly severe consequences are highly likely to occur. Where there is a low chance of harm and low severity of harm, there is no requirement to do anything, since this just represents the standard "background risks" of everyday life.

8.5 What guidance on risk assessment would you give to an American university which was thinking of running a summer school in London, UK for its students?

Matter of Facts. DON'T FOCUS ON AVOIDING LIABILITY. FOCUS ON AVOIDING HARM. No harm then no liability. Point of risk assessment is to make changes and policies that reduce harm. regularly re-evaluate as the program goes on. Act reasonably and you won't be held liable. If a second person gets injured in the same way, then they'd be liable as they were on notice. How do you do a risk assessment? Look at provisional itinerary and classes and such. Send someone from the US who'd never been to the UK before. Around the same age group to accurately predict the risks they would take. There is a risk to the risk assessment. Have them document everything they do from the US airport on. Make sure they have a passport (Make them prove they have a valid passport and big bold letters, apply for a passport.) Make them bring it to the airport. Both these are high/high risks. International health insurance. Safe housing. Identify likely risks. Look at other similar programs (not first but later). Who's law would apply? It would be up to the Plaintiff. While there, subject to English law. Contract here in the US. Plaintiff choses which law applies. Can't take English law and apply it in the US. Therefore, learn the laws.

Could any alternative system or systems achieve these objectives more effectively or at less cost? If so, why don't we adopt it (or them)?

No fault system, like PIP. - Don't need to prove culpability or fault on the part of the person who caused the injury. Only had to worry about injury in fact and causation. Why is PIP capped at 10k? It must be capped because if it was unlimited, the premiums would need to be unlimited because the risk of loss would be incalculable. Needs to have a concrete number (calculable) that will be set for a specific amount of time to calculate the risk to set the premiums. This is what Ins. Co. need from the law: predictability. The No Fault/PIP system is much more efficient is paying the medical bills - this is not how it works with liability insurance. liability requires that you were injured by the other person and the other person was at fault but ... its political and gets screwy restrictions. Systems that have no fault systems don't use the tort systems if its a really bad offense, it goes to criminal law. NICA - Neurological disorders suffered by babies during childbirth. Parents can submit a claim without proving fault by the doctor. Run by the state of Florida and financed by doctors, OBGYN's pay most of it, other doctors pay a smaller amount. It would be the same amount as suing for a tort but easier but you don't have to prove fault. It's VERY profitable!!! When a payout is needed, it is VERY large. Not done because of politics, people don't want to pay less if its a tax. And doctors don't want one central healthcare system. i. The biggest factor in payouts in torts settlements in the US is healthcare. If you want to reduces the amount of payouts, then you need to find a way to reduce the healthcare costs. The sole reason why damages paid out in all other countries (except NZ) with a system of torts is because of national healthcare

(CHECK WITH ALLIE) Should tort law always defeat contract law?

No, because if we do that then parties can choose to deny their obligations to a contract through tort law. But always is strong word, so it should be generally allowed.

8.2 Is "negligence" a different concept from an "error of judgment"? Explain your answer.

No, they are not different because they both can be unreasonable; "I wasn't negligent, it was just an error of judgement," but that error could easily be unreasonable. Negligence is when you do something unreasonable. Negligence has two meanings. Doing something unreasonable/ breach of duty BUT it also means the tort of negligence. Some error of judgments are unreasonable and therefore, negligent. Negligence usually contains an error of judgment, but an error of judgment does not always equal negligence.

8.10 Is there a different standard of care for novices? If so, why and how? If not, why not?

No. A novice is still a professional. Example: driving a car for the first time.

Duty of Care

Only element of negligence which is always a matter of law. Is concerned with the question of whether the defendant was under a legal obligation to try to avoid causing harm to the victim. If the defendant owed no duty, then he or she cannot be held liable for negligence, even if his or her conduct caused the victim's injury.

Lay Person Standard of Care

Reasonable person standard (Campbell - lawnmower and projectile). Same physical characteristics as defendant. Average mental ability. Same knowledge as average member of the community

(CHECK) As Lord Steyn noted in Lister, the Canadian cases on vicarious liability have been described by Professor Peter Cane as "a genuine advance on the unauthorised conduct/unauthorised mode distinction." Do you agree?

Salmond said that a wrongful act is deemed to be done by a "servant" in the course of his employment if "it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master".11 Situation (a) causes no problems. The difficulty arises in respect of cases under (b). Salmond did, however, offer an explanation which has sometimes been overlooked. He said12 that "a master ... is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes — although improper modes — of doing them" (my emphasis).13 Salmond's explanation is the germ of the close connection test adumbrated by the Canadian Supreme Court in Bazley v. Curry14 and Jacobi v. Griffiths. Lord Steyn differentiates between unauthorized conduct and unauthorized mode in the case of serious sexual misconduct because he feels that there is no way to imagine that serious sexual misconduct is simply an "unauthorised mode of carrying out an unauthorized act." The fact that the teacher was employed by the school makes it easier for the teacher to prey on the student(s), but that does not mean that the unauthorized act is in anyway related to the teacher's position as an employee. Grain did something diametrically opposed to that which he is required to do for his employment and vicarious liability usually only applies if the employee is doing that which is within the scope of their employment i. The issue in this case is that if the victim can't sue the employer, then he is stuck going after Grain and Grain is worth nothing since he is currently in jail ii. The lower court justifies holding the employer vicariously liable because Grain did not report harm to the boys and reporting harm to any of the students is a part of his duties

Holmes' View on Foreseeability

Seen as a failure. Holmes's view was that, once a set of jury verdicts had established that a particular practice in a given set of circumstances or within a given industry is the norm, then the relevant standard of care could be determined by the court as a matter of law (albeit often expressed in terms of duty rather than breach). Is unthinkable for a court to claim that it could specify in advance precisely how every task within any given industry should be performed. Would have undermined capitalism. Common Law couldn't adopt principle that would undermine economy.

8.3 Why was the practice of risk assessment, and the use of risk assessment charts, adopted (a) in the US military, and (b) in Europe, significantly earlier than in US civilian life?

So you can manage the risk. The point is that life is risky, and you cant eliminate (nor do you want to) all the risk. 1. The troops have a higher risk of dying than regular civilian life 2. Military equipment is a huge amount of money. Assessment of risk providing that its lower compared to other vehicles. Now there is an actual risk if you are negligent. Risk assessment is trying to meet the standard of care

Premises Liability

Someone is physically injured by a hazard situated on someone else's premises. In order to implicate the law on premises liability, the safety of the premises themselves must be in question. Not concerned with if the defendant was negligent, but the state of the defendants property. This doctrine does not recognize claims for either pure economic loss or pure emotional distress.

Professional Standard of Care

Specialized skill and training - defer to expertise of the profession (Bruni - Dr using unsanctioned practices).

Standard of Care in Premises Liability

The court gets to assert the standard of care as a matter of law in a way that it cannot do with regular negligence cases

Res Ipsa Loquitur

The facts speak for itself. Used when you don't have the facts to prove - jury may infer that Δ was probably negligent. Three factors: (1) Π's injury ordinarily occurs because of negligence by someone in Δ's position; (2) Instrumentality causing the injury must be w/in the exclusive control of the Δ; AND (3) Injury must not be due to any voluntary action of Π.

The phrase "on a frolic of his own" is perhaps one of the most popular in the legal lexicon. Does it any longer have any meaning?

The label that the law applies to a situation where an employee has engaged in an activity outside the scope of what his or employer could reasonably have been expected to foresee. The consequence of an employee's being engaged in a frolic is that the employer cannot be held vicariously liable for the consequences of the employee's conduct. It still has meaning in today's legal theory, but is probably most applicable to a driver who intentionally goes off course or intentionally drives a vehicle that is not suitable for the job they are entrusted with

Standard of Care

The level of care that is expected of someone who owes a duty of care. This sets the level of care that the defendant's conduct is measured (only if the defendant has already been shown to have owed a duty of care to the victim). In most cases, the level of care required equates to doing what is reasonable. In some cases, however, the level of care is more specific (such as the duty to provide a warning) or somewhat greater then simple reasonableness (such as the heightened duty of care owed by common carriers). You DONT breach a standard; you dont meet the standard and thus breach a duty.

What is vicarious liability, and how is it distinguished from primary or direct liability?

The liability incurred by one person for a tort committed by someone else. So far as the victim is concerned, vicarious liability often forms a vital "bridge" to a defendant organization with sufficient wealth or liability insurance to meet the claim for damages that the tortfeasor probably would not be able to pay. It is different than direct liability because it covers people/businesses who are not the policy holder but for whom the law had decided the policy holder is responsible for. `

8.9 As was noted in Bruni v. Tatsumi, the standard of care for medical professionals includes the necessity of obtaining the informed consent of the patient. How should a medical professional obtain such informed consent, and how is a jury to determine whether it was, in fact, obtained?

The standard expected for a reasonable patient (informed consent). A doctor can not treat a patient without their informed consent. Explain what is to be done and the risks of such and then do what they said they would do. (If say surgery on left leg, don't perform surgery on right leg.) The doctor should have it in writing so (among other things) the jury can evaluate the consent given. If the doctor is trying something new, he might not know the risks to tell the client so how is it informed? What should have been done - Must explain what the normal procedure, what the differences are, what some possible risks may be, that some risks may be unknown. If it's something that has been done a billion times and a crazy one in a million harm occurs, they are still covered because they did what every other doctor would do. Reasonable person idea.

Bennett v. Stanley [Premises Liability-> Attractive Nuisance]

This is a case about a 5-year-old boy who, upon seeing a rainwater filled pool at his neighbors' home, ventures onto their property and proceeds to drown in the pool. The mother found the boy shortly thereafter and also drowned attempting to save her young son. The father of the boy sued the neighbors for their negligence in his son's death. ISSUE: The boy was a trespasser. The mother was too, for that matter. According to the duties owed to trespassers, which are next to none, the neighbors should not be liable for any harm they incurred on their property as a trespasser. So how can the neighbors have a duty to the boy or the mother when they were trespassers? FINDING: The court stated that the pool was effectively an attractive nuisance, meaning it was an object enticing enough that children may be attracted onto a property because of it. The attractive nuisance doctrine states that attractive nuisances can give rise to child trespassers owed a duty something more akin to an invitee, the highest class for duty owed for premises liability. The court stated that the mother, in attempting to rescue her child, was similarly transformed from trespasser to something akin to an invitee based on her purpose for being on the property (rescue). The court accordingly reversed and remanded the cause to the trial court for further proceedings.

Bernier v. Boston Edison Co. [Foreseeability-> Risk Assessment]

This is a case about a driver who, through a series of mishaps, ends up hitting a cement electric poll in a populated public place, which in turn crumbled and struck the plaintiffs in this case. The plaintiffs sued the electric company for their negligence in not building a sturdier poll for the densely populated area. ISSUE: It was unclear as to whether this incident was foreseeable for the power company, and so the contention was how could the power company be liable when this incident was in no way foreseeable? FINDING: The court found that the power company had an exceptionally weak pole for the area, that the concrete surrounding the wires on the inside crumbled at very low impact, and that the rest of the pole simply crumbled under its own weight after initial impact. The court further stated that the power company knew of the danger, because they replaced on average 106 downed power poles in that area annually. Finally, they stated that an adequate risk assessment would have prevented such a weak pole to be placed in such a populated commerce area. The court accordingly found for the plaintiffs.

10. Is it true that both the jury system and the common law are formally irrational, like the oracles of ancient Greece?

Yes, because the common law is unsystematic whereby it allows judges and juries to create law and make decisions after the occurrence of events rather than before them. According to Weber yes, however the common law is calculable because analogy and induction do provide reasonably clear predictors of the law to those (like judges and attorneys) who are trained in their usage. so not completely irrational. Weber would say: (ORACLE): Formal system. it's consistent with a series of rules. have to pay money, give sacrafice, ask a question, etc. happens everytime; has no meaning except in this system. BUT; it's irrational. may differ as to how much she'll say.case by case basis (Civil Law):Formal rational. very predictable. know what the rules are before (Common Law):formal irrational. know what the procedural is, who does questions of law and fact. know the substantive arguments

(CHECK) Is it fair to say that vicarious liability is a means of rendering "rough justice," but that the degree of roughness it involves is far less than would be the case if the doctrine did not exist?

Yes, if there was no vicarious liability, then victims would often have no remedy but sometimes it can be unfair to the business.

8. Is it appropriate for counsel and/or judges to look at the decisions of other jurisdictions — whether American or otherwise — in order to help inform themselves as to what might be the most appropriate decision in a specific case? If your answer to any part of this question is "No," why is it considered acceptable throughout both the federal and state judiciary to cite English cases from before the Second World War?

Yes, just to see what they decided and how they came to that decision. However, lately, the US thinks they are too good to use other country's decisions anymore. Last 3/4 decades. If they do look at others, they don't acknowledge it. The biggest and most important barrier is language. Translating is not a good idea. Another barrier is the legal culture. Civil systems think differently, have a different purpose.

Invitee

[Premises Liability] A person who enters someone else's land or premises with express or implied permission and for the actual or potential economic benefit of the person in ownership or possession. Ex. Customer going into shop.

Licensee

[Premises Liability] Someone who is lawfully on another's premises, either for social reasons or to exercise a special legal power (e.g. arrest, delivering the mail, or reading a utility meter)

Trespasser

[Premises Liability] Someone who is on another's premises unlawfully.

What were the relevant policies at stake in J'Aire?

a. Deterrence, compensation, redress of social grievances b. General Deterrence - to prevent tardiness of other construction companies in completing work c. Compensation - How much, if anything, should J'Aire be compensated for their foreseeable losses caused by the Gregory? d. Retribution - What does Gregory deserve for their wrongdoing? e. Corrective Justice - restoring the parties to the means they were in before by having Gregory pay f. Why isn't vengeance at play? because vengeance is much more likely to be in play when the person who caused the injury acted intentionally and this is a case about negligence not intentional injury g. Denunciation - No denouncing of Gregory because the injury isn't really significant socially and the injury wasn't intentional

What is the best explanation for the House of Lords' decision in Lister?

a. I would think the best explanation would be that they want to hold the primary personally responsible in the case of serious sexual misconduct rather than the employer - this is a social reasoning b. Throws out the Salmond test (which looks simply at authorized and not authorized duties) and replace it with the "close connection" test c. In this case, the Lords' say that Grain would not have been able to commit the tort if he had not been on the job therefore it is a "close connection" to his job duties

Since the vast majority of states have rejected the application of the notion of a non-delegable duty's being owed by a hospital to a patient, a patient who slips on a greasy floor that should have been cleaned will have a claim against the hospital on the basis of either vicarious liability or non-delegable duty; a patient who is injured by the negligence of a nurse will have a claim against the hospital on the basis of vicarious liability; while a patient who is injured by the negligence of a doctor will normally be unsuccessful in bringing either type of claim against the hospital. Is this position satisfactory or anomalous?

a. If other types of employers are not vicariously liable for independent contractors why should hospitals be so? b. The difficulty here is in distinguishing doctors who have privileges at a hospital from doctors who solely work for the hospital - shouldn't that be two different categories? One being independent contractors who must carry their own liability insurance and the latter being employees whom the hospital must have coverage for? I feel that this might be a better plan then having hospitals not cover any doctors. i. In appearance, a victim would not necessarily know the distinction between a doctor that is an employee of one hospital or a doctor with privileges c. Currently, the victim would have to sue all doctors involved in a surgical procedure and hope that you get information along the way to prove direct liability against one of the doctors i. Also, there is the possibility that the victim's injury has nothing to do with the doctors at all because all surgeries have inherent risk d. Differently, if you go after the employer for vicarious liability then you only have to show (on a preponderance of the evidence) that something went wrong not who caused the wrong e. US is the only country in the western world that treats doctors as independent contractors, the rest view it has non-delegable duties - this means that doctors would only need liability ins for work done outside the hospital, which would lead to lower premiums for doctors i. What are the 2 reasons that make this system better for doctors? 1. There is no issue with getting liability ins and no real need to shop around for the most cost-effective plan 2. Since victims, in the US, have to sue everyone possibly responsible, then doctors are potentially being stigmatized and have to defend a suit even if they did nothing wrong f. Why does the American medical profession, in general, favor the current system? i. In most other western countries, doctors tend to lose their independence in their non-medical duties

13. What is: (a) inductive reasoning; (b) deductive reasoning; (c) analogy? To what extent should the courts be prepared to make use of each of these forms of reasoning?

a. Inductive reasoning: requires lawyers to seek common threads or themes within a series of precedent and then purports to arrive at propositions that are at a higher level of generality than those produced by analogy alone - this is how judges can make law in a common law system, when there is no specific law or clear-cut precedent for a set of circumstances, inductive reasoning is required to shed light on how a case should be decided; inductive reasoning allows pieces to be taken from multiple previous cases to determine a general legal principle b. Deductive reasoning: deductive reasoning is taking the legal principle determined via inductive reasoning and applying it to a specific set of circumstances c. Analogy: most used element; depends on the "requirement of relevant similarity"

11. Is there a place for the jury in a modern system of private law?

a. Juries are not bound by anything other than their own minds and culture and generally do not know what they are doing b. Why was the jury originally created? i. Originally a very corrupt system ii. Transformed into a less-corrupt, more independent system iii. The jury was kept as a check on the judge (the king's man) c. Do we still need juries as a check on judges? i. Juries also force attorneys to behave in a specific way. makes them simplify the law in a way a layperson could understand. d. Could juries be a check on the laws? i.e.: jury nullification Remember: judge represents the gov't. Who represents the people? Jury.

How well does the law succeed in achieving these policy objectives?

a. None of them alone manage it very well - a combination of the different theories would work the best b. Combine deterrence and boundary maintenance in an effort to create optimal deterrence i. Deter bad behavior to an extent, but allow the bad behavior that does occur to helps us know and determine where the boundaries lie ii. The law of torts used to be viewed as having two main goals: to deter bad behavior and to compensate those who are effected by bad behavior that does occur c. Putting the different potential objectives in a ranking order (as question 1 asks for) would be determinant on the specific set of facts - {think back to Chp 1 theory of judicial reasoning}

(check) Do the facts of Lister remind you of any analogous incidents in the US?

a. Similar to whether or not individual dioceses were responsible for the sexual misconduct of priests - Catholic Church (and other churches) b. There were similar situations going on around the western world c. Essentially, in the US all similar cases end in settlements or are thrown out by the courts - there is no case in the US which sets out the legal principles

What is the difference between "supervision" and "control," and why does it matter?

a. Supervision is the relationship between an employer and an independent contractor b. Control is the relationship between an employer and employee or master and servant - this is a more binding relationship c. The type of relationship matters because of who the responsibility for the tortfeasor's actions will lay with - in a supervisory relationship, the responsibility lies with the tortfeasor whereas in a control-based relationship, the responsibility lies with the principal (employer/master)

In a "hard case", where the law is unclear, what are judges in a CL supposed to do?

a. The judges are supposed to listen/read the persuasive arguments of both sides, review binding (and non-binding) precedent (generally as presented by the attorneys involved), and attempt to give effect to a policy that is perceived to be appropriate in the circumstances b. Inductive reasoning - seek common threads or themes within a series of precedent (analogizing prior cases) and then arrive at propositions that are at a higher level of generality than those produced by analogy alone c. In practice, judges are expected to weigh the non-binding cases presented by the attorneys and focus on the most often cited cases, cases that are more similar factually, etc. - this is all personal choice ----- this does not occur if there is binding precedent! i. Judges are expected to evaluate the conclusion, as well as the reasoning, of the prior case(s) presented that are non-binding

One way of testing the soundness of a public policy argument is to consider whether any alternative way of structuring things would be likely to produce better results. So would it be preferable to require all employees to carry liability insurance?

a. This would probably not be a socially acceptable policy - how would the employer insure that the employee's liability insurance lapse? How would the employee pay for said liability insurance? Would there be a group plan that you can opt into through your employer that you pay for out of your paycheck? How would this work? b. If everyone carries liability insurance, where is the incentive for an employer to create a safe working environment? It is generally thought to be safer to hold companies responsible through the rules/regulations imposed on them by liability insurance c. Who is going to pay for the individual liability plans? i. Employers may be expected to pay higher wages so that their employees can afford the individual plans d. Is it better to have the employer pay directly? Or indirectly through higher wages? e. Why is the system set up the way it is rather than another way? i. It is to the benefit of both sides - the employers and the employees f. The end result will be less coverage for a victim and, potentially, more defendants involved in a litigation in order for the victim to get the same coverage that they would get if they were to sue one employer i. Most individuals will probably purchase the minimum liability ins and therefore have lower policy limits g. Employers are afraid of employees unionizing in order to get higher wages to cover the costs of liability ins i. Employers do not want any incentive to bolster unionization

12. Was it right that property law considerations in Scibelli be allowed to defeat the potential application of tort law doctrine?

a. Yes because the tort would have restricted the train company's right to their own property/business and it was really mostly an accident whereas the tort vs. contract was intentional or at least knowingly b. Contract law - we are going to uphold what you expressly agreed to c. Property law - it's yours and you have the right to do with it what you please d. Torts - sometimes people injure others, if the injury is unintentional then we have to balance things and we can't do this balancing act unless we know all the facts

7. Is J'Aire fundamentally about: (a) the correct interpretation of past precedent; (b) the drawing of analogies with past cases; (c) the application of inductive reasoning to establish the relevant legal doctrine; (d) the application of deductive reasoning to apply the relevant legal doctrine; (e) the application of policy?

a. the correct interpretation of past precedent; i. Why isn't this applicable? There is no past precedent that easily gives the answer ii. There is lots of past precedent in which plaintiffs are denied remedy because of lack of a contract b. the drawing of analogies with past cases; i. The Court argued that the precedent they were looking about was based on the foreseeability of the injury rather than the nature of the injury c. the application of inductive reasoning to establish the relevant legal doctrine; i. The Court viewed this case to be about the foreseeability of the injury ii. The Court relied on the doctrine of privity in contract in order to give a remedy to the injured party d. the application of deductive reasoning to apply the relevant legal doctrine; i. Going from the analogy where they inducted a general principle, they then apply the general rule of law e. the application of policy? i. The willful failure of a contractor that causes injury is against policy

Is Scibelli fundamentally about: (a) the correct interpretation of past precedent; (b) the drawing of analogies with past cases; (c) the application of inductive reasoning to establish the relevant legal doctrine; (d) the application of deductive reasoning to apply the relevant legal doctrine; (e) a dispute as to who has the power — judge or jury — to render the central decision in the case; or (f) the application of policy?

e. a dispute as to who has the power — judge or jury — to render the central decision in the case; i. The jury automatically awarded the kid's family money ii. The appellate court stated that the case should have never gone to a jury iii. Who should decide? Judge or jury? 1. There needs to be a rule of law determining when the judge gets to decide and when the jury does 2. A lot of the issue in torts cases are whether or not the case should go to a jury at all - there is a lot based on MSJs iv. The dissent believed that the jury should have been the one to decide v. The jury was brought about as a check on trial judges (the King's man) and then the appellate court judges have become a check on juries vi. Power of remitter - judge has the power to lower the amount of compensation granted by the jury f. the application of policy? i. If you believe that economic efficiency should be the number one policy, then the majority's opinion is plausible ii. The dissent made plausible arguments based on the particular facts of the case - the dissent argued that the cost of policing the one block where the kid was injured is not going to be overly expensive; also there were 5 RR employees in the same car as where this occurred iii. Normally when you want to persuade, you need a hook and this case does not have a hook for either side

The Supreme Court of Connecticut has explained that: "Vicarious liability is based on a relationship under which it has been determined as a matter of public or social policy that one person should be liable for the act of another, irrespective of the participation of the person vicariously liable." What is the "public or social policy" at stake?

public policy concerns fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or "inherently" dangerous; and, finally, instances in which the employer is under a specific nondelegable duty. That injured people would not have a remedy and would ultimately be harmed twice. want to ensure that the victim is compensated in a socially acceptable way

. Rank the purposes or policy objectives of the law of torts in the order of importance you think most appropriate and be prepared to explain this order.

refer to doc.

Can employers ever be held directly or primarily liable for torts relating to the conduct of their employees, or can their liability only be vicarious?

there are actually two ways in which an employer may be directly liable for an injury caused by an independent contractor's tort. One, as we have seen, is liability for breach of a non-delegable duty. Another is liability for the negligent hiring and/or supervision of an independent contractor. In other words, if the employer's choice of independent contractor was unreasonable, or if there was inadequate supervision — note: not control — of how the contractor went about his job, then the employer may be liable directly for its own unreasonable conduct, because it had the effect of facilitating the injury that the victim sustained. When the unreasonable hiring of another person involves the employer's own fault, the employer would be directly liable - otherwise it would be vicarious liability. If the employer doesn't do their due diligence in hiring an employee or company, then they are directly liable for the tortious acts of the employee/company. If you hold an employer directly liable, the damages can be higher - you can claim punitive damages if the employer is directly liable, not so if the employer is vicariously liable. The point of being able to hold an employer directly liable is that you can hold the employer responsible whether or not the tortfeasor is an employee or an independent contractor i. Why? 1) Independent contractors are not covered by employer's liability insurance, and 2) You don't need to figure out if the tortfeasor is an employee or an independent contractor -Issue with vicarious liability is establishing if they are independent contractor or employee (3 tests?) 1. label- what does the employer "label" the person, 2. Control test - employer has complete control over how the individual performs their duties; is the person a skilled or unskilled individual. unskilled and supervised is more employee. Skilled and unsupervised is more like contractor. but still difficult to determine so need the.. 3. integration test-has the employer integrating the individual into further workings of the company beyond the scope of their job description; access to employee-only facilities; the person doesn't work for anyone else during normal working hours

Why is an understanding of the concept of risk essential to an understanding of the law of torts?

while we want the law to try to deter behavior that has a disproportionate risk of harm, we equally do not wish to develop legal doctrine that inhibits the taking of worthwhile risks. Its a is a balancing act; limit unjustifiable risk while allowing an acceptable level of risk in order to encourage life, new business ventures etc.

9. Does the type of legal system in each jurisdiction provide a good indicator of the type of society that exists within that jurisdiction?

Émile Durkheim, suggested that the type of law that predominates at a given time in a given society provides a good indication (or what he called an "index") of the type of society that exists. He argued moreover that, as societies develop, they move from what he called "repressive" law to what he termed "restitutive" law.a. Yes, the common law legal system evolves with changes in societal norms and customs - it may not evolve as quickly as the society, but it does generally eventually catch up