• Is the actior and employee?
• Control or right to control work performance
• Is the actor acting w/i scope of employment?
• Acting to fufill duties NOT personal endeavor
• Acting w/i hours and spacial boundires
• Acting w/ motive to further employer interests
• Intentional torts as well
• Christensen: Gate guard gets short lunch, menu, rushed

• Generally no vicarious liability unless;
• RS Agency:
• Representation of authoriry
• that is relied on
• that changes position of 3rd party
• RS Torts:
• IC need only have resonable belief that he is providing service rendered by "master."
• Roessler: Medmal at hospital by IC doctor; *policy*

• Employer neg. himself => Directly to deep pockets

• P must prove:
• (1) Duty
• (2) Breach
• (3) Causation
• (4) Damages
• Strict liability, still must prove everything but breach
• Hammontree: In the absense of fault, the cost of injury stays with the injured.

• The conduct of a cautious person under the circumstances
• The Hand Formula: B > P x L
• Is burden of alternative conduct less than the likelihood that injury will occur considered in relation to the severity of the injury?

• Child: Children under 5 or 7 can not be negligent
• Physical Disability: Reasonon person w/ disability
• Unforeseeably unconscious
• Emergency actor: RP in emergency situation

• Judgment/Intelligent: Character and intelligence becomes the test
• A million standards
• Mentally Ill: Impossible to identify standard
• Caretaker may be liable
• Voluntary intoxication

• A person w/ extraordinary skills will be held to the standard of a reasonable person w/ those skills

• Customary foregoing of a safety mechanism or behavior does not mean no breach is implementation is low
• Customary use of a safety mechanism or behavior
• Can increase the standard of care

• Child
• Emergency actor
• Physically disabled
• Unforeseeably unconscious
• Mentally ill
• Someone with bad judgment/ low intelligence
• Voluntary intoxication

• Children under a certain age can not be negligent
• 5 or 7 depending on the restatement used.

• Standard is what would reasonable conduct be in light of the emergency

• What would a reasonable person with the disability do?

• If unforeseeably unconsious, not liable for any injuries that result from the unconsciousness.
• Same for incapacitation

• Too hard to determine breach here b/c of varying mental illness
• Caretaker may be negligent

• If judgement or intelligence were allowed to lower the standard there would be a million different standards
• Would not longer be assessing breach, but character and intelligence
• Menlove: Starts fire next to barn. Claims too stupid to know otherwise.

• No reduction in standard.

• Held to the standard of a reasonable person with those skills
• Skiier hypo

• Adams: Swinging of the wire/horseplay likely to cause injury
• Carroll Towing: Likely that a barge or boat could come loose and crash into barge during busy time in waterway

• Adams: Electrocution likely to cause severe injury.
• Carroll Towing: Damage that canbe caused by loosened ship can be very great

• Adams: Can not rebuild power system. Too expensice. Maybe put signs up.
• Carroll Towing: Very easy to ensure that bargee is on the barge to sound the horn.
• Risk-utility test
• Alternative conduct that would get the job done that is not so risky
• Technical feasinility
• Vaccinations have very calculable risk but utility

• Yes, then any injury that results from foregoing it would be negligence
• No, burden high? Knowledge? Technical feasibility?
• Trimarco: Doesn't make sense to have all shower doors fitted at once. Too expensive. No.

• Bethel: Bus seat breaks. Common carriers have higher standard of care?
• Andrews: Bag falls from overhead on plane. Extra. standard b/c common carrier? Burden to put in nets was low anyway so don't need it.

• Three ways to treat a statute violation when considering negligence
• Violation as evidence of D's negligence
• D presumed to be negligent unless rebutted
• Violation establishes negligence unless there is some excuse (3rd Restatement)

• Statute meant to protect from injury that occured?
• Statute meant to protect the class of person injured

• "but for" causation
• Proximate causation (type/extent analysis)

3) Is violation good evidence of neg?

4) Can D overcome a rebuttable presumption of neg?

    Martin: Buggie driver must show that a reasonable           person would have violated headlight statute.

5) Does D have an excuse to overcome negigence per se?

     Tedla: Safer to be on the wrong side of the street.

• D must have enough time to in which it would have reasonably eliminated a danger.
• Negri: Lady slips on broken jar of baby food. Witness says that she heard jar break shortly before woman fell.
• Gordon: Evidence of cleanliness of wax paper admitted.

1. Direct proof of negligent act discoverable?
2. Instrumentality of harm in sole control of D?
3. Accident occur in the absense of negligence?
4. Medmal case?
1. Layman can determine no inj but for neg?
2. Expert needed to determine inj but for neg?
5. P's negligence contribute to instrumentality that caused harm?

Negligence: Res Ipsa

1) Direct proof of negligent act discoverable?

• Where evidence of specific act is discoverable res ipsa can not be used.
• Wheels-fall-off: Look around to see if lug nuts are on the street.
• Where evidence is not discoverable it may be used
• Boadle: No way to know why the flower barrel fell out of D's window.

Negligence: Res Ipsa

2) Instrumentality of injury in exclusive control of D?

• Control need not be at time of injury, but P can not have had control of the instrumentality of his injury.
• Soda pop explodes: Intrumentality of injury not in control of D when can explodes but liab.
• Collapsing platform: Contractor not in control of platform when it collapses, but does not bar res ipsa claim
• McDougland: P was neg, but not neg re instrumentality. Tire cradle was in D control.

Negligence: Res Ipsa

3) Accident would not have occurred in absense of negligence.

• Non-negligent explanations should be excluded until a reasonable person could conclude negligence.
• Northern Energy: Cellar explodes after D worked on water heater, but D showed that P kept flammible liquids where there was an open flame.
• McDonald: Tire comes out of tire craddle. P does not have to eliminate ALL other causes. Doesn't have to show chain manuf. not neg.

Negligence: Res Ipsa

4) Res ipsa usually requires that a layman be able to determine no injury but for negligence.

• In the case of medmal cases, an expert may be used to determine no injury but for negligence.
• Critics argue this should not be allowed.

Negligence: Res Ipsa

5) P's negligence contribute to instrumentality that caused harm?

• Even if P was negligent, in order for a res ipsa claim to be barred, P's negligence must contribute to the instrumentality that cause his harm.

• Res ipsa is permitted in medmal claims where no expert is needed to determine if the injury would have occured w/o negligence.
• Doctor operated on wrong leg.
• When an expert is needed, it is more controversial.
• Sides: Court determined that where a layman can not determine if an injury would have occurred but for some negligence, an expert may be used.

• The standard of care for a medmal case.
• What a doctor in the field of D would do given the customary standard of care in the field.
• Sheeley: Overqualified expert may be used to testify to the customary standard of care of general phys. as long as he has some reason to say he is an expert on the general phys. standard.

• A doctor must inform a patient of the material facts that a reasonable would want to know when weighing his treatment options.
• Material facts are those that a reasonable person would consider material.
• Patient must have made an alternative choice if given all the facts.
• Injury is differnce btw. actual state and preffered state, not lack of self-determination.

Duty: Affirmative Duty to Act

Cases where courts have upgraded moral obligation to duty.

• Because of our interests in liberty there is generally no affirmative duty to act unless;

1. Special relationship
2. Assumption of care
3. Undertaking that assumes care
4. Creation of risk
5. Statute that creates duty

• Employer-employee
• Parent-child
• Farwell: Two teenagers go on an adventure to pick up girls. Companions on an adventure that creates a special relationship?

• Farwell: One boy treated the others injuries and displaced other care by driving around all night and not bringing to the hospital.
• Often, beginning to care for somebody will displace other care so if you stop, the injured is in a worse position.

• Both negligent and non-negligent creation of risk can create an affirmative duty to rescure from the risk created.
• Negligent creation of risk could be considered more of an act.

• Uhr: Scoliosis not tested for despite statute saying kid should be tested by school. Kid's scoliosis exacerbated.
• P member of class that the statute was meant to protect?
• Allowing cause of action promote purpose of statute? Encourage adhearance?
• Allowing a cuas eof action promote the legislative scheme? Other enforcement?

Duty: Affirmative Duty: Third Parties

Tarasoff Analysis

Therapist believes that a patient will likely cause harm to a sepcific patient.

Duty: Affirmative Duty: Third Parties

Tarasoff Analysis Continued

Therapist believes that a patient will likely cause harm to a sepcific patient.

• The court found that where there is a known risk of injury, there is a duty to protect the third party or control the conduct of the dangerous actor.
• Doctor-patient confidentiality concerns
• Can't expect therapists to KNOW when harm is really threatened.
• Can't run around warning everyone of risks breaching doctor-patient confidentiality.

Duty: Affirmative Duty to Act: Third Parties

Randi W Analysis

School district gives good recommendation of employment to another school disrtict despite knowing that employee had a history of sexual assualt. Third party child was sexually resulted as a result.

• Restatement: Negligently gicen false information from one party that induces the action of a second party that leads to a third party's injury is a breach of duty.
• Randi W: Since there was no duty btw SD1 and the sexually assualted child, SD1 had no affirmativee duty. However, SD1 acted with negligence when affirmatively giving a posative recommendation. *Policy*

Duty: Policy Limitation of Duty

Unreasonable Liability Exposure

• Can a limited class of P be defined?
• ConEd: No affirmative duty to person who fell in stairwell of building during 1977 NYC blackout.
• Expose ConEd to liability for every injury that resuted from the blackout? No. must limit the "orbit of duty" to definable class of plaintiffs.
• Moch: No water preassure in fire hydrant. Warehouse burned down.

Duty: Policy Limitation of Duty

Hosts & Alcohol

Reynolds: Three options

1. Every host has duty of reasonable care.
2. Only commercial hosts have duty b/c they have financial interest in creating the risk.
3. Neither have duty b/c social gatherings are a public good.
• Hard to say that a bar is a social good worth protecting

Duty: Policy Limitation of Duty

Giving chattel for use by reckless or negligent parties

Vince: Giving money to reckless grandson to buy car

• Retstatement: Person who gives chattel to someone who out of inexperience or recklessness causes injury to thrid party may be liable for injury.
• *Policy* concern that holding lender's liable will reduce availability of credit.
• Car dealer who is aware of recklessness or inexperience may be held liable.
• Leave keys in car: Would there be a duty if someone stole the car and injured. More likely if keys were left in car in crime-heavy neighboorhood.

Duty: Landowners/Occupiers

Old Scheme

Carter: Morning bible study invitee slips on ice.

• Trespassers: Only duty is to not injur wantonly or w/ intention. Can't booby-trap.
• Licensees: Duty to make sure known dangers are made safe.
• D in Carter shovelled driveway eliminating known danger. No duty to investigate unknown danger.
• Invitees: Duty to investigate and make known and unknown dangers safe. Public invitation. Benefit invitation.

Duty: Landowners/Occupiers

New Scheme

Heinz: Hospital employee's husband slips at front entrance.

• Court found that the hospital should not be let off simply b/c of the technical classification of P's invitee status. The pigeonholing of invitees into catagories should not let landowners avoid liability against common sense.
• Changes analysis from one of duty to one of breach.
• Reasonable care standard should apply

Duty: Landowners/Occupiers

New Scheme: Analysis