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Comparative Negligence
if both are negligent, proportional amount paid
Contributory Negligence
if both are negligent, no damages awarded

(Driver seizure) The driver is only liable if the seizure is
foreseeable and if he took no special actions to prevent it. Strict liability not available because it is meant for people engaging in business
Respondeat Superior
Employers are vicariously liable for torts committed by employees while acting within the scope of their employment
Respondeat superior

The fact that an employee’s tortious act was committed outside the property of the employer is
not a bar to recovery under respondeat superior, must consider the facts

Three rules of the Birkner test were used

The trip to the cafe could fall substantially within the ordinary spatial boundaries of her employment
Depending on the facts a hospital can be vicariously liable for a negligent
independent contractor under the theory of apparent authority. They made it look like the contractor was an agent
Apparent authority
situation where a reasonable person would understand that an agent had authority to act
Adams v. Bullock

There is a duty to adopt all reasonable
precautions to minimize the resulting perils. The trolly company took the precautions
Learned Hand formula

duty is a function of

1) the probability that harm will occur;
2) the gravity of the injury resulting; and
3) the burden of necessary precaution
looking at whether the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur.

looking at whether the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur.
What do P, B and L stand for in the Learned Hand formula?
P-probability of injury occurring (likelihood) L- seriousness of injury B- burden of precautions
If B< P x L then
the party was negligent
The reasonable person standard looks at the _____ conduct not the ________.

It is a(n) ______ standard because it attempts to find a community norm
Looks at the external conduct not the state of mind

Bethel v. New York City Transit, what is the standard of care for common carriers
A common carrier should merely be held to the same standard of care of the reasonable person, just like everybody else.

how a reasonable person will act under the same or similar facts
Constructive Notice
given what you saw you should have known
Actual Notice
you actually knew
Pokora v. Wabash Railroad,

Duty of care at a rail road crossing
The duty is reasonable care
enterprise liability
increase the cost of the product to lessen the blow
Using the B, P, L measurement analyze this problem:

Roller coaster kills a child
(P) probability- low
(L) sersiousness of injury- high
(B) burden- high

Burden outweighs the other side, not negligent
Reasonable person looks at
the external conduct not the state of mind (objective)
reasonable care under the
can parents be vicariously liable for their children
negligence (restatement)
if the person does not exercise reasonable care under the circumstances (for contributory negligence too)
Balancing approach to negligence (restatement)
conduct is negligent if its disadvantages outweigh its advantages. If it's the other way around then it's not negligent.

Even if the likelihood of harm is small a person may still be found negligent if the balancing test comes out that way
is it enough that there is a high likelihood (probability) of harm
no, it must be foreseeable to the actor at the time of the conduct.

If it's a situation where the person should have known and investigation would have given that info we balance the burden it would have been to get that info
73 year old defendant suffered a stroke which impaired his driving abilities and he got in an accident- held
The court held that since he didn’t completely lose consciousness he was still liable
Lawyer argued that his client wasn’t very intelligent and his reasonableness should be measured by his mental capacity- held
  • this would blur the reasonableness standard
Defendant crashed into a car, didn’t stop and then crashed again. Had little recollection of the incident and has a family history of mental illness.- held
If a driver loses consciousness like in Hammontree then the driver is not negligent but they did not extend this defense to “sudden bouts of mental illness”.
The restatement says that if someone is physically disabled then the standard of care should be
reasonable person with the same physical disability
restatement- can we take an emergency into consideration when determining reasonableness?
what if person's negligence caused harm then he tries to help and is negligent in the help
the original negligence was the actual cause of the problem so the person would negligent regardless of whether the subsequent conduct was negligent.
Restatement- standard of care for children
reasonable child of the same age, intelligence and experience
children engaged in adult activities
reasonable adult standard, no longer consider their childhood
Restatement- emotional and mental disabilities are considered how?
severe and minor emotional/mental disability is disregarded in considering whether the person exercised reasonable care

they create administrative concerns and innocent victims should have the opportunity for compensation
Restatement- does it matter if someone is an expert or knows more in a certain area for purposes of reasonability?
skills or knowledge that exceed those possessed by most others are to be taken into account in determining reasonability
Person with Alzheimer's goes down a one way street and injures people. Result?
mental disability is disregarded, he's liable
In most states if you're below __ you can't be sued
negligence per se
unexcused violation of a statutory duty
Is the violation of a statute always negligence? 

not necessarily, if it is a statute promoting safety and obeying it in this instance would lead to unsafe conditions then it shouldn't be followed
Trains can’t block traffic for more than 10 minutes. There has been a train on the tracks for 30 minutes then a car runs into the train.
  • Before you can say per se we must look at the legislative intent
    • The statute had a non safety purpose- to avoid traffic congestion
  • The harm that occurs must be the same as the statute is trying to prevent and the person harmed must be the same person that the statute is trying to protect
    • Same kind of harm and same class of people
  • When the statute doesn’t apply we resort to the reasonable person standard
Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within
scope and nature of their employment
Scope and nature of their employment
  • The employee's conduct must be of the general kind that the employee is hired to perform (not a wholly personal endeavor).
  • The employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
  • The employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest.
Negligent acts by independent contractors are generally ___________  under vicarious liability
not actionable,  unless the injured party can show that the contractor was an "apparent agency" of the principal
x of y cards