Synthesizing and Organizing the Law

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Synthesizing and Organizing the Law
I. Employers are vicariously liable for the torts
of their employees, but not for the torts of
independent contractors. A. The test for
whether someone is an independent contractor is
???? II. Employers are liable if an employee
commits a tort while acting within the scope of
employment. A. An act is within the scope of
employment if 1. Rule from the case 2. From
the Restatement B. Examples of the rules
application 1. Christensen 2. Others from
notes, class discussion
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Synthesizing and Organizing the Law
III. One who contracts with an independent
contractor may be liable for a tort committed by
an independent contractor if A. An ostensible
agency or agency by estoppel exists. 1. Under
the Baptist Memorial case, an agency by
estoppel exists if . . . 2. Under the
Restatement (Second) of Torts, an apparent
agency exists if . . . 3. The better
approach is ?
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Synthesizing and Organizing the Law
III. One who contracts with an independent
contractor may be liable for a tort committed by
an independent contractor if B. The
duty to use due care in performing the
contracted activity is non delegable. 1.
Not emergency rooms 2. Property owners and snow
removal 3. Mechanics -- division of
authority. Lost for a rule? check a treatise!
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Synthesizing and Organizing the Law
IV. An employer may be liable for her own
negligence if she acts negligently in A. Hiring
/ retaining the employee B. Training /
supervising the employee READ THE NOTES
FOLLOWING THE CASES CAREFULLY
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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Assumption of the risk

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Negligence The Table of Contents
Chapter Two Breach Chapter Three and Four
Duty Chapter Five Causation Chapter Six
Defenses
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Chapter Two The Negligence Principle A.
Historical Development of Fault Liability
Brown v. Kendall (Mass. 1850) What was the
trial courts error? Did the decision in Brown
change the law? How would the McDonalds Hot
Coffee case be decided under the rule in this
case?
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Chapter Two The Negligence Principle A.
Historical Development of Fault Liability

• Brown v. Kendall (Mass. 1850)
• How did Chief Justice Shaw explain his decision?
• Note 4, page 37
• Legal Realism
• As a challenge to legal formalism
• Principled vs. political decision making

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The judicial power as understood by our
common-law tradition . . . is the power "to say
what the law is," not the power to change it. I
am not so naive (nor do I think our forebears
were) as to be unaware that judges in a real
sense "make" law. But they make it as judges make
it, which is to say as though they were "finding"
it . . .. James B. Beam Distilling Co. v.
Georgia, 501 U.S. 529 (1995) (Scalia, J.
dissenting).
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Negligence B. The Central Concept 1. The
Standard of Care
Adams v. Bullock (N.Y. 1919) (p. 38) The jury
found that the trolley company was negligent.
Why does Justice Cardozo disagree? What are the
possible untaken precautions in Adams? --
insulating the wires? -- placing a guard over
the wire under this bridge? -- placing a guard
over the wire at all bridges? -- posting a sign
at all bridges? Is the Braun case (note 2)
distinguishable?
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Negligence B. The Central Concept 1. The
Standard of Care
U.S. v. Carroll Towing (N.Y. 1919) (p. 38) From
the bargees perspective, is the result in this
case consistent with Adams? Green?
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Negligence B. The Central Concept 1. The
Standard of Care
U.S. v. Carroll Towing (N.Y. 1919) (p. 38) The
owners duty . . . to provide against resulting
injuries is a function of three variables (1)
the probability that she will break away P (2)
the gravity of the resulting injury if she does
L (3) the burden of adequate precautions
B. Liability depends on whether B is less
than L multiplied by P, i.e. whether BltP x L.
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Negligence B. The Central Concept 1. The
Standard of Care
Richard Posner, A Theory of Negligence (n.1
p.43) If the cost of safety measures or of
containment -- whichever is lower -- exceeds the
benefit in accident avoidance to be gained by
incurring that cost, society would be better off,
in economic terms, to forgo accident prevention.
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Assignment
For Wednesday and Thursday, Read pages
47-58. Do Problem 1 (as handed out in class, 2
on the web site. For the rest of the week
Read through p. 67