Torts Briefs

Table of Contents
Vicarious Liability Christensen v Swenson ........................................................................................................................ 1
Roessler v Novak....................................................................................................................................................... 2 Adama v Bullock........................................................................................................................................................ 3

Standard of Care

United States v Carroll Towing Co .................................................................................................... 4 Reasonable Person

Bethel v New York City Transit Authority ........................................................................................... 5

Role of Judge and Jury Baltimore & Ohio Railroad Co v Goodman..6 Pokora v Wabash Railway Co .7 Andrews v United Airlines, Inc...8 The Role of Custom Trimarco v Klein..9 Statutes Martin v Herzog10 Proof of Negligence Negri v Stop and shop...11 Gordon v American Museum of Natural History..12 Byrne v Boadle..13 Mcdougald v Perry..14 Ybarra v Spangard..15

Christensen v Swenson Facts: Swenson was a security guard at the Geneva Steel Plant. Guards were expected to eat while on the clock. They were allowed unscheduled fifteen minute breaks. During these breaks they sometimes purchased food at the Frontier Cafe across the street from the plant. Swenson was leaving the caf headed back to her post when she hit a motorcycle driven by Christensen. Christensen sued to and claimed that Burns was liable under the doctrine of respondeat superior. Issue: Is the fact that an employees act was committed outside the property of the employer mean the employee was automatically outside the scope of employment? Holding: No This is a disputed fact Reasoning: Birkner test for determining whether an employee was acting within the scope of her employment for liability under respondeat superior: 1) The employees conduct must be of the general kind the employee is hired to perform, that is, the employee must be about the employers business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor. 2) The employees conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. 3) The employees conduct must be motivated, at least in part, by the purpose of serving the employers interest. The lower court had held that had not been substantially within the ordinary spatial boundaries of her employment, and therefore did not address all three criteria. This court held that reasonable minds could differ as to whether s trip to the cafe fell substantially within the ordinary spatial boundaries of her employment and therefore summary judgment was inappropriate. Reversed and remanded.

2 Roessler v Novak Facts: Roessler ruptured an abdominal organ and went to Sarasota Medical hospital. Dr. Lichtenstein was working as an independent contractor for SMH and read his Diagnostic scans. After his surgery he had to stay in the hospital for 2 months for complications including renal failure, brain abscesses and a heart condition; (obviously somewhat attributable to Lichtenstein) Alleged that Licht didnt read scans correctly and was negligent in not including an abdominal abscess in diagnosis of scans. Argued that Sarasota was vicariously liable, even though Licht was an independent contractor for SMH radiology. Issue: Is a principal vicariously liable under the apparent authority policy for independent contractors it has hired and who are negligent? Holding: Held that summary judgment was premature and that Sarasota medical had not proven that there was no basis for the suit. It ruled that a jury trial was to take place. Reasoning: Court ruled that SMH radiology only worked with Sarasota, their only administration and building were on Sarasota property, and that SMH had apparent authority which is the precedent that the court followed. Three criteria for Apparent Authority 1. Representation by the principal 2. Reliance on representation by a third party 3. Change in position by third party because of reliance

Reversed and remanded for jury trial-

3 Adams v Bullock Facts: There was a boy who swung a wire off of a bridge and it hit the trolley lines that the defendant ran and it electrocuted the boy. The trial court returned a verdict for the boy, and the appellate court affirmed. Issue: Was the defendant negligent and thus responsible for the boys electrocution? Holding: No. Reversed. Reasoning: The defendant is using a trolley system lawfully There was a duty to adopt all reasonable precautions to minimize the resulting risks and there is no evidence that this duty was ignoredno one standing on the bridge or bending over it could reach the wire no vigilance could have predicted the point upon the route where an accident like this would occur no accident like this had occurred before this accident was not foreseeable insulating the wires is impossible in the case of trolleysso the would have had to put the wires underground and abandoned the overhead system for this not to have occurred

4 United States v Carroll Towing Facts. Carrol owned a barge, which was chartered by a railroad company. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tankers propeller broke a hole in the barge. The barge dumped its cargo and sank. No one was aboard at the time. Appellee argued that is someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved. Issue. Was the Carrol negligent by not having an attendant aboard the barge when it broke free from the pier. Holding: Yes Carrol was negligent Reasoning: The court applied the burden was less than the injury multiplied by the probability formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the probability that the barge would break free if unattended. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the duty of ordinary care occurred. Most courts employ Judge Hands formulation: a comparable risk-benefit model. The Hand formulation provides that an actor is in breach if the burden of taking measures to avoid the harm would be less than the multiple of the probability of the kind of incident in question times the gravity of the harm should it occur, or B<PxL. Appellants held partly liable.

5 Bethel v New York City Transit Authority

Facts: Bethel was riding a bus and was injuries when the wheelchair accessible seat collapsed. Bethel could not prove that the defendant actually knew of the defect. Bethel relied on a theory of constructive notice and showed a computer printout of a repair record that showed that the seat had been fixed or adjusted recently and that a proper inspection would have revealed the defect that was responsible for the collapse of the seat. The court used the highest standard of care because the bus was a common carrier. The court entered judgment in favor of Bethel. Issue:Is the highest standard for common carriers correct for buses? Holding: No. The proper standard is the objective reasonable person standard. Reasoning: This standard was developed for old trains that were very dangerous. Modern buses are not nearly as dangerous and the standard should not be the same. The old rule no longer applies and a common carrier should be held to the same standard of care as the reasonable person. Remanded for a new trial. Important: This case overturns the former high standard of care owed by common carriers.

6 Baltimore & Ohio Railroad . Co. v. Goodman Facts: Goodman was struck and killed by one of Baltimore & Ohio railroads (D) trains as he was driving across a railroad crossing. Goodmans view of the crossing was blocked and he did not stop, look, or listen for approaching trains. Goodmans widow (P) sued and the railroad moved for a directed verdict on the grounds that Goodmans death was the consequence of his own negligence. The trial court entered judgment in favor of Goodman, the court of appeals affirmed, and D appealed. Issues: 1) Can a party prevail on a negligence claim if the evidence shows that that party failed to take reasonable precautions to guard against a risk that he was aware of? 2) In an action for negligence, is the question of due care, a matter for the finder of fact to decide when it can be resolved by a clear standard of conduct? Holding and Rule: 1) No. A directed verdict should be entered against a party who has suffered injury because he failed to take reasonable precautions to guard against a known risk. The court held that Goodman was contributorily negligent for not stopping and looking. No reasonable jury could have found in favor of P under these facts. 2) Normally the question of due care is left to the finder of fact but when the standard of conduct is clear it should be laid by the courts. Disposition: Reversed. Notes: The basis of the courts decision here is contributory negligence. The finder of fact normally determines the applicable standard of care unless the standard is clear. Under the old common law contributory negligence was a complete bar to recovery. Contributory negligence is conduct that falls below the standards established by law for self-protection.

7 Pokora v. Wabash Facts: Pokora (P) approached a Wabash (D) railroad crossing in his truck. Pokora stopped and looked and listened as well as he could. P heard no bell or whistle and drove slowly ahead and was struck by a passenger train. P sued Wabash for his injuries and the trial court granted a directed verdict in favor of D on the grounds that P was contributorily negligent as a matter of law. The ruling was affirmed by the court of appeals and D appealed to the United States Supreme Court. Issues: 1) What is the duty imposed on a party when crossing a railroad track? 2) What criteria must courts of law use in establishing a standard of prudent conduct as a rule of law? Holding and Rule: 1) There is a duty before crossing a railroad track to stop, look, listen, and to get out of the vehicle and reconnoiter if the view is obstructed and one cannot otherwise be sure that a train is not dangerously near provided that sight and hearing become inadequate for a travelers protection. 2) A standard of prudent conduct declared by courts as a rule of law must be taken over from the facts of life, and must be such that a failure to conform to it is negligence so obvious and certain that rational and candid minds could not deem it otherwise. The circumstances of the situation dictate the duty that is due and the duty to stop and look is predicated on circumstances where sight and sound alone make it dangerous to a reasonable person. It is up to the jury to decide whether a particular course of action was prudent under the circumstances. Disposition: Reversed and remanded. Notes: The standard for measuring negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. The fact finder on a case-by-case basis must determine that standard. The negligence standard never changes; it is only the circumstances that change and how a reasonable person acts under them.

Andrews v. United Airlines

8 Facts: Upon arrival of a United Airlines (D) flight at the gate, a briefcase fell from the overhead compartment seriously injuring Andrews (P). Passengers were warned on arrival that items stored in overhead bins may have shifted and that passengers should use caution. Expert testimony revealed that there had been 135 reported incidents of items falling from overhead bins. Andrews appealed the district courts grant of summary judgment in favor of United Airlines. Issue: Is the question of whether an airline has a duty to do more than warn passengers about the possibility of falling luggage a matter for the jury to decide?

Holding and Rule: Yes. Common carriers must use the best precautions in practical use known to any company exercising the utmost care and diligence in keeping abreast with modern improvements in such precautions. Many jurors have been airline passengers and are equipped to decide if D should have done more to warn the passengers. Summary judgment was not appropriate. Disposition: Reversed and remanded.

9 Trimarco v. Klein Facts: Trimarco (P) fell through the glass door enclosing the bathtub in his apartment and suffered severe injuries. After the accident it was determined that the glass was ordinary glass. Trimarco sued his landlord Klein (D) for his injuries. At trial, Trimarco introduced expert testimony regarding the custom and usage of tempered glass. The expert testified that the use of shatterproof glazing materials for bathroom enclosures had been in common use since at least the early 1950s such that by 1976 the glass door in Ps bathroom did not conform to accepted safety standards. Under New York law, only safety glazing materials had been permitted for use as of 1973.Ds management admitted that it had been customary for landlords to replace glass with safety glass since 1965. The trial court entered judgment in favor of P. On appeal the appellate division reversed, holding that Klein did not have a duty to replace the glass unless he had prior notice of the danger. P appealed. Issue: Can custom and usage establish per se the reasonable person standard? Holding and Rule: No. Evidence of custom and usage is highly relevant to the reasonable person standard but it does not per se define the scope of negligence. When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care. When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. The court held that in this case P presented more than an abundance of evidence to the jury to reach and sustain the verdict below. Disposition: Order for new trial reversed judgment in favor of P. Notes: Custom and usage is good evidence of what ought to be done but it must still be reconciled with the reasonable person standard.

10 Martin v. Herzog Facts: Martin (P) was killed in a collision between his buggy and Herzogs (D) car. Martin was driving at night without lights and Herzog (D) was driving on the wrong side of the road. Herzog claimed that Martins failure to use headlights constituted contributory negligence and barred him from recovery. At trial the judge instructed the jury that it could consider whether Martin had been contributorily negligent in failing to have a light upon the buggy as provided by law, but that not having a light did not necessarily make him negligent. The jury was instructed that they were at liberty to treat the omission of the lights either as innocent or as contributorily negligent. The jury found in favor of P.T he Appellate Division reversed and P appealed.

Issue: May a jury, relax the duty that one traveler owes under a statute to another? Is negligent conduct actionable by itself, or must there also be a showing that the negligence was the cause of the injuries incurred? Holding and Rule: The unexcused violation of a statutory duty is negligence per se and a jury may not relax the duty that one traveler owes under a statute to another. Negligent conduct is not actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred. The rule is applied less rigidly where the other party was not a member of the class for whose protection the safeguard was intended, and where the safeguard is by local ordinance rather than by statute. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the accident. To say that conduct is negligence is not to say that it is always contributory negligence. To impose liability there still must be a showing of cause, proximate cause and damages. The court held that evidence of a collision at night between a car and an unseen buggy proceeding without lights is evidence from which a causal connection may be inferred between the collision and the lack of lights. If no other evidence is offered to break the causal connection, then there is contributory negligence. Disposition: Affirmed. Notes: Where a party has been negligent per se, in order for that party to be liable there also must be causation and damages. Negligence alone is not enough.

11 Negri v. Stop & Shop, Inc Facts: Negri (P) slipped and hit her head on the floor in a Stop and Shop (D) grocery store. There were broken jars of dirty and messy baby food nearby. A witness had not heard any jars break in that area for approximately twenty minutes before the accident and the aisle had not been cleaned for at least 50 mins. The trial court found in favor of P and D appealed. On appeal, the Appellate Division reversed in favor of D and P appealed. Issue: Is circumstantial evidence sufficient to permit a jury to determine whether a dangerous condition existed long enough to give the store sufficient notice to discover and remedy the condition? Holding and Rule: Yes. The circumstantial evidence presented enabled P to establish a prima facie case that the store had constructive notice of the hazardous condition. The evidence was sufficient to withstand summary judgment in favor of D and it was error to dismiss the complaint. A store has a duty to protect invitees from known or concealed dangerous conditions. The circumstantial evidence permitted the inference that D had constructive notice of the dangerous condition of the floor. Disposition: Reversed.

Gordon v. American Museum of Natural History

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Facts: In this case, a guy was leaving the museum and he was going down the steps and he slipped on the 3rd stair and saw a piece of wax paper that came from the concession stand outside of the museum that the museum had contracted to have present. The plaintiff says that the defendant should have had constructive notice or actual notice of the dangerous condition presented by the paper on the steps. The case went to the jury on the theory that the defendant had actual or constructive notice of the dangerous condition presented by the paper on the step. Procedural History: The jury found for the plaintiff and the appellate level affirmed. Issue: Did the appellate level err? Holding: Yes. Order is reversed and the certified question is answered in the negative (no constructive or actual notice) Reasoning: There is no evidence in the record that the had actual or constructive notice of the paper and the case should not have gone to the jury on that theory. 1. Constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants employees to discover and remedy it. 2. Record contains no evidence that anyone including plaintiff observed the piece of paper before the accident. 3. Plaintiff did not describe the paper as dirty or worn, which would have provided some indication that it was there for a while 4. On the evidence presented, the piece of paper could have been deposited there only minutes or seconds prior to the plaintiffs fall.

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Byrne v. Boadle Facts: Byrne (P) was struck by a barrel falling from a window as he walked past Boadles (D ) flour shop and sustained serious personal injuries. A witness testified that he saw the barrel fall from Boadles window but had not seen the cause. Byrne did not present any other evidence of negligence by Boadle or his employees. Boadle moved for a nonsuit on the grounds that Byrne had presented no evidence of negligence. The court granted the motion and plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne and reversed. Boadle appealed. Issue: Can liability for negligence lie solely on account of the type of accident that occurred, without direct evidence of negligence? Holding and Rule: Yes. Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of negligence.