Posts categorized as "Torts"

What is respondeat superior?

Respondeat superior means that an employer can be held liable for a tortious act of his employee if the employee commits the tort while performing his duties as an employee.  The employer will not be liable if the employee commits the tort for his own interests and where his actions are not within the scope of his employment.

For example, let's say David delivers pizza for Ricky's pizza shop.  While delivering a pizza David drives carelessly and slams his car into Patty's car.  Patty should be able to sue David for negligence and also sue Ricky's pizza shop pursuant to a theory of respondeat superior.  

But let's say David decides to play a joke on Patty by jumping in front of her and screaming while she is walking down the street.  Patty is terrified and sues for David for assault.  Jumping in front of Patty and screaming has no connection to David's job and the prank was committed to further his own interests.  Ricky's pizza shop is probably not liable for David's actions.


Video on Res Ipsa Loquitor

I have a new video on Res Ipsa Loquitor...enjoy your weekend!


What if a person believes a ridiculous lie - - is it fraud?

The elements of fraud are a representation of a material fact, falsity, scienter, reasonable reliance, and injury.

Taking these in order...


We need to have a statement (or in some cases an omission) about an important fact.  Usually opinions and predictions are not legitimate bases for a fraud case, although there can be exceptions.  If I say vanilla ice cream is delicious but you prefer chocolate, I have not deceived you.

 Also, the fact must be important.  If I sell you a car and I say the car is new, that is probably an important fact.  You'll pay more for a new car than a used car.   If I tell you the car was built last Tuesday morning but the car was built last Tuesday afternoon that is probably not an important difference.


The important representation of fact must be false. If I say a car is brand new and it really is brand new, well, don't complain, I told you the truth.


Scienter means some sort of culpable mental state.  In a fraud case the defendant must know that the statement is false or at least be reckless with the truth.


This is key to the student's question.  If a reasonable person would not believe the lie then the fraud case should fail.  But generally speaking people have a right to believe what they are told.  Courts typically don't expect people to conduct investigations if they have no reason to suspect a lie.  

However, let's say a buyer knows that a car he is buying is used.  The salesperson lies and says the car is new.  The buyer could not reasonably rely on the salesperson's lie if he knew that the car was used.

In most cases the jury will decide whether reliance was reasonable or not unless a judge decides that it was obvious that the reliance was not reasonable.  Judges in the United States have the power to grant summary judgment if all of the important evidence and the law clearly favors one side.   In those cases a judge can grant judgment without a trial.  If it is obvious that a plaintiff did not reasonably rely then a judge could grant summary judgment for the defendant.  


The plaintiff must suffer some type of harm.  Spending money on a new car which is actually a used car would be a typical injury in a fraud case.


What are actual cause and proximate cause in a negligence lawsuit?

A defendant is liable for negligence only if his carelessness (breach of his duty of care) caused plaintiff's injury.

Courts will instruct juries that causation means that the plaintiff must prove actual cause  and proximate cause.

Actual Cause (sometimes called "cause-in-fact")

Actual cause is easier: "but for" what the defendant did, would the plaintiff have gotten hurt?

If a mechanic does not fix a car's air-conditioning  properly and later that day the car's rear tire explodes, the mechanic is not liable because the mechanic's  carelessness did not cause the tire to explode.

Proximate Cause

Some courts call proximate cause  "legal cause" but you might also see it called "substantial cause".  

It is not enough that a defendant's act eventually resulted in plaintiff's injury - - in some cases that might not be fair to the defendant.  Typically, a plaintiff will not be able to prove proximate cause if the defendant's action was an insignificant cause of the accident, there was some kind of intervening act, or if the type of harm was unforeseeable.

Here are some examples:

Let's say a defendant carelessly drops a banana peel on a sidewalk.  Someone drives by who loves bananas and is distracted by the banana.  The driver causes an accident.  Leaving a banana peel on the sidewalk was an actual cause of the accident but not a proximate cause because the type of harm was not a foreseeable risk from leaving a banana peel on a sidewalk.  We could also argue that the defendant did not have a duty to prevent this accident but let's talk about that later.

What would happen if someone stepped outside to take a picture of the banana peel an hour later and was struck by lightning?  Again, the plaintiff might be able to prove actual cause but the strange sequence of events leading to the injury should cut off the defendant's liability for negligence.


Or, let's say a defendant manufactures a product that could be used as an explosive.   A bad guy buys the product and uses it as a weapon.  Victims sue the manufacturer for negligence.  A court (or jury) might determine that the bad guy's action was an intervening cause and the manufacturer cannot be held liable for negligence.  Intentional criminal acts are frequently identified as intervening acts that should cut off negligence liability.  As you probably guessed, there are some policy questions that courts and legislatures must consider when determining whether a defendant should be held liable for negligence where someone else acts criminally.



What is the difference between Res Ipsa Loquitor and Strict Liability?

A student wrote, "I am confused Res Ipsa Loquitor with Strict Liability"

This is actually a really interesting point when you look at the history of strict liability and case law in the United States.

Res Ipsa Loquitor means we allow the jury to presume that the defendant was careless - - breached his duty of care - - based on the circumstances of the accident.  The classic res ipsa loquitor case was a barrel falling from a warehouse. In my book I described a refrigerator falling from a window.  The plaintiff might not have any proof as to exactly how the defendant acted carelessly,  but we can assume that the defendant did something silly, otherwise the refrigerator would never have fallen.  The circumstances of the accident allow the jury to assume that the defendant breached his duty of care, even if there is no other proof.  The defendant could try to introduce evidence to defeat res ipsa loquitor (burglars broke into his house and threw the fridge out the window while he was away on vacation or something like that).  

Strict Liability means that the defendant is liable no matter how carefully he acted.  Liability is based on the defendant doing "X", not how carefully defendant does "X."

If a company manufactures or distributes a defective product the law imposes strict liability. Even if the company claims it was careful it will be liable for a defective product.  We assume that it would be better to make the company pay for the damage caused by its defective products instead of making people who are hurt by the defective product pay for their own injuries.

I liked this question because over time strict liability replaced res ipsa loquitor for defective products.  If you go to a US law school you will read a case from the 1940s (Escola v. Coca Cola Bottling) in which a waitress was hurt by a defective bottle.  She won her case based on res ipsa loquitor.  But one important judge believed that she should have won based on strict liability.  Over time, strict liability became the rule for liability in defective product cases.

Negligence: What is tort law's reasonable person standard?

For practical purposes, the reasonable person standard is a way to help jurors answer the question "Did a defendant breach his duty of care?" or "Did a defendant act less carefully than he should have acted?"

For every activity, we can apply a reasonable person standard:

Let's say Debby is running and spills hot coffee on Patty by accident.  Patty sues Debby for negligence.  In the United States, Debby is only liable for negligence if she breached her duty of care.  How do we know whether she breached her duty of care?  We ask the jury to compare what Debby did to what a reasonable person would do.  I don't think a reasonable person would run with a cup of hot coffee down a crowded sidewalk.  If Debby ran down a crowded sidewalk with a cup of hot coffee, a jury would likely conclude that Debby breached her duty of care because she fell below the reasonable person standard.

In some cases courts instruct juries to apply a more specific standard.  For example, let's say Debby is a doctor.  Dr. Debby performed a medical procedure but the procedure made patient Patty sicker.  To determine whether Dr. Debby acted carelessly as a doctor by performing the procedure we ask whether she fell below the standard of a reasonable doctor.  Would a reasonable doctor have performed the procedure? Would a reasonable doctor have performed the procedure better than Debby?

There are other standards that one can use to help determine whether someone acted carelessly.  For example, if there is a law requiring a construction worker to use a safety device but he does not use the device, this may be all the proof a court requires to show that the construction worked breached his duty of care.   


When do courts apply a strict liability standard, as opposed to a negligence standard, for abnormally dangerous activity?

The general rule in the United States is that a defendant is liable for carelessly causing harm to foreseeable plaintiffs.  The negligence standard tells us that if the defendant acted carefully enough, he should not be held liable.

Defendants who engage in abnormally dangerous activity are held strictly liable.  They are liable no matter how cautiously they acted.  The idea behind strict liability is to encourage people to not engage in an activity that is very dangerous, or to engage in the activity somewhere else so no one gets hurt.  Strict liability should encourage people to find alternative, safer ways to do things.  

Traditionally, U.S. courts apply multiple factors to determine whether an activity is abnormally dangerous and subject to the strict liability standard.  These factors are:

(a) existence of a high degree of risk of some harm;

(b) likelihood that the harm that results from the activity will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is uncommon;

(e) inappropriateness of the activity to the place where it takes place; and

(f) the extent to which the value of the activity to the community is outweighed by its danger.

The most important modern case on this issue is Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).  In that case a famous and influential judge (Judge Posner) reasoned that shipping a dangerous chemical in a major city was not abnormally dangerous because reasonable care could have prevented the accident (factor (c)).  In addition, he concluded that it would not be practical to try and reroute the way the chemicals were shipped (factor (e)).

Some legal scholars want to condense the factors to the following:

An activity is abnormally dangerous and strict liability should apply if (a) the activity creates a significant risk of physical harm even if people engage in reasonable care; and (2) the activity is uncommon.