Anglo-American
Contract and Torts
Prof. Mark P. Gergen
Class Eight
Vicarious liability, strict liability,
and products liability
Early 1900s
•“Pockets” of liability for carelessly caused harm
•Intervening wrong-doing often treated as a
superseding cause
•Contributory negligence complete bar to recovery
•Broad doctrine of assumption of risk
Rise of negligence as a general cause of action
Shift to comparative fault eliminates the bar of contributory
negligence.
Doctrines of superseding cause cut back to cover only some
criminal conduct.
Doctrine of assumption of risk cut back so unreasonable
decision to engage in an unreasonable activity is treated as a
comparative fault
The upshot is that many more types of claims can be litigated.
But there are limits . . .
Zone of
danger
Undertakings
Fisherman’s
rule
Pure emotional
disturbance
Bystander
liability
Pure economic
loss
Undertakings
Preventive
expenses
Liability for
carelessly caused physical harm
Special no liabiilty
rules for some
superseding
wrongful conduct
Special
affirmative duty
rules based on
a special
relationship
Mere nonfeasance
Limited
duty owed
trespasser
Abolition of joint and several liability for harms caused by
multiple tortfeasors absolves D from part of loss attributable to
other wrongdoers.
This alleviates some of the objections to holding an actor liable
for carelessly failing to protect P from (or facilitating) wrongful
(particularly criminal) conduct by another.
It creates a need for rules to not absolve an actor from liability
when he breaches a specific duty or fails to perform an
undertaking to protect P from the conduct in question.
Duty rules determine what claims can be litigated.
In the US the rules on breach, cause in fact, scope of liability, and
damages are best thought of as regulating how a claim is litigated,
i.e., what evidence must be presented to establish a point, what
evidence may be presented, when is a point sufficiently in issue to
be put to the jury, how will the jury be instructed, etc . . . .
Breach: was the actor’s conduct unreasonable?
Cause in fact : did the unreasonable conduct cause the harm in
question?
Scope of liability/legal cause: is the harm among the risks that
made the actor’s conduct unreasonable?
The actor may be the defendant, the plaintiff if comparative fault
is at issue, or even a “phantom” . . .
Breach: was the actor’s conduct unreasonable?
Sometimes there is a tailored standard of care-children, the physically
disabled,. ..
Often much depends on how the breach is framed . . .
Rules on negligence per se may resolve this issue
The doctrine of res ipsa may allow a finding of negligence even
though the specific negligent conduct cannot be identified
Cause in fact : did the unreasonable conduct cause the harm in
question?
Usually the but for test . . .
There are special rules that may apply in some cases involving
irreducible causal uncertainty and over-determined consequences.
Many of these special rules deal with cases where there are multiple
wrongdoers and the uncertainty goes to who among them caused the
harm.
Colmanares uses non-delegable duty . . .
Central case of multiple sufficient cause, Summers v. Tice,
market share liability
Scope of liability/legal cause
Old principle—interest within the risk
New principle—harm within the risk (“risk rule”)
There are special rules for certain types of risk (egg shell skull, rescue,
etc . . .)
And there are special rules absolving an actor from liability for certain
types of superseding wrongful conduct
Abolition of joint and several liability opens the door for a defendant shedding
liability by apportioning fault to other wrongdoers responsible for the harm.
Vicarious liability—respondeat superior
An employer is strictly liable for torts committed by an
employee who is acting in the scope of his employment. The
employer is liable though it is in no way at fault.
•a form of strict liability (enterprise liability)
•the employer may also be liable based on its own negligence in hiring,
supervising, or equipping an employee.
The employer has a right to be indemnified by the employee.
Indemnity is almost never sought by employers.
Indemnity is the right a secondary obligor has to demand
reimbursement by the primary obligor when the secondary
obligor satisfies an obligation. Typically this is contractual,
as in liability insurance.
Traditional rule is that conduct is within the scope of
employment if the conduct is actuated in part by a
purpose to serve the master.
Limpus v. London General Omnibus (1863), p. 101, shows courts
stretched to hold conduct within this principle to compensate
victims. Coach driver intentionally obstructed other coach to
get revenge for a perceived slight . . .
Some US courts apply the principle that an employer is liable if
its employment of the tortfeasor substantially increases the risk
of the incident.
Priest sexually molests child in his congregation. Is the church
liable under the traditional rule? Under the principle just
described?
Generally no vicarious liability for the torts of an “independent
contractor” unless the contractor is engaged to perform a “nondelegable duty.”
Service provider is an “independent contractor” if the hirer
has no right to control the manner and means by which the
work is done.
Non-delegable duties include
•Certain affirmative duties, such as duty of business owner
to maintain safe premises. Colmanares, pp. 61-62
•An “inherently dangerous activity”
E.g., hiring a contractor to use explosives).
Rogers v. Night Riders (CA/Eng. 1983), p. 92 (P calls D for cab.
Cab company is a routing service. Cab drivers own and operate
their own cabs. P is injured as a result of defect in the cab.)
Hardy v. Brantly (Miss. 1985), p. 96 (P goes to emergency
room of hospital. Physician who negligently treats him,
resulting in P’s death, works as an independent contractor).
The defendant is held liable for the independent contractor’s
negligence in both cases. But this is not on a general theory of
vicarious liability.
In Rogers the theory is P contracted with the company for a
well-maintained cab. See p. 93 middle and bottom.
In Hardy the theory appears to be that the hospital led P to
believe that the physician was its employee. See p. 98 middle.
Hannaola, p. 97 bottom, uses the concept of estoppel.
Had the cab driver negligently run into another car, the cab
company would not be liable . . .
In both cases the underlying problem is that the driver and
physician didn’t have sufficient insurance to cover the loss.
The results throw the excess loss on the cab company and
hospital . . .
In many common law jurisdictions there is a rule of strict
liability for abnormally dangerous activities, such as blasting or
keeping dangerous animals.
In a strict liability action proof of an abnormally dangerous
activity substitutes for proof of negligence. Everything else is
the same including the rules on what counts as an “injury,”
which generally limit liability to physical harm to person or
property.
Strict liability for abnormally dangerous activities
Rylands v. Fletcher (artificial reservoir built above
underground mine in mining region bursts flooding P’s mine)
Keeping animals known to be dangerous
Blasting
But not driving an automobile or even a large truck or
owning a gun though these are quite dangerous activities.
Two arguments for strict liability:
1) Compensation for harms caused by nonreciprocal
risks; and
2) Reduction of risks inadequately regulated by
negligence liability (sometimes described as an
evidentiary rationale).
Reciprocity is basically a fairness argument. People who engage in
unusual activities that impose a significant harm on others even if
done carefully profit at the expense of others under a negligence
regime.
Conversely negligence liability is thought appropriate for
activities that involve reciprocal risks because the benefit of
immunity and cost of accidents not worth avoiding are shared
roughly equally.
Security
Culpability
Liberty
Strict liability for
abnormally
dangerous
activities
D owns a vicious dog, which he prudently keeps in a well
fenced yard. P crosses the fence into the yard, trespassing,
and is bitten by D’s dog. Assume liability is strict so breach
(carelessness) is not an issue. With which of the following
defenses does D have a reasonable likelihood of success?
a)
b)
c)
d)
e)
f)
No duty
No causation
Outside of scope of liability
Superseding cause
Contributory negligence
Assumption of risk
Products Liability
Implied warranty of
merchantability: good must
be fit for the ordinary
purposes for which it is used,
be of “fair average quality,”
etc . . . UCC 2-314.
Consumer expectation:
product is defective if it
has unexpected harmful
characteristics
Negligence:
Manufacturer must take
reasonable care to avoid
physical harm.
Risk-utility: product is
defective if risk justifies
cost of redesign or
warning to reduce risk
Implied warranty of
merchantability: good must
be fit for the ordinary
purposes for which it is used,
be of “fair average quality,”
etc . . . UCC 2-314.
Negligence:
Manufacturer must take
reasonable care to avoid
physical harm.
P opens and drinks a soft drink in a can only to find a dead bug at
the bottom of can. Does P have a stronger claim for breach of
warranty or negligence?
P chokes on a small bone in a meaty fish stew. Does P have a
strong claim for either breach of warranty or negligence? Do you
need more facts?
Back to the bug in the bottle. The manufacturer establishes that 1
in 100,000 bottles will end up with a bug no matter how much care
it takes, and that its incidence level is no more than 1 in 100,000.
Is the manufacturer subject to negligence liability?
Why impose strict liability for unavoidable manufacturing defects?
•Evidentiary rationale
•Loss spreading
•Creates incentive for manufacturers to do research to reduce bugs
•Creates incentive to adjust activity level for unavoidable risks
Restatement Second Torts Section 402A (p. 106 top)
“One who sells any product in a defective condition unreasonably
dangerous to the user or consumer to his property is subject to
liability for physical harm thereby caused . . . if the seller is
engaged in business of selling such a product . . .”
The focus of the claim is on the condition of the
product. Is the product defective?
The bug in the bottle is a “manufacturing defect.” This is a
product that does not conform to specifications.
A product can also be defective because of its design or
failure to warn. In the US the standard generally is “riskutility.”
Restatement Second Torts Section 402A (p. 106 top)
“One who sells any product in a defective condition unreasonably
dangerous to the user or consumer to his property is subject to
liability for physical harm thereby caused . . . if the seller is
engaged in business of selling such a product . . .”
An innocent distributor and retailer are held liable so the
plaintiff may proceed against a local actor. The expectation
is the loss will be passed up the chain to the manufacturer.
Restatement Second Torts Section 402A (p. 106 top)
“One who sells any product in a defective condition unreasonably
dangerous to the user or consumer to his property is subject to
liability for physical harm thereby caused . . . if the seller is
engaged in business of selling such a product . . .”
Liability is limited to physical harm.
Under genuine absolute liability a manufacturer (or distributor
or retailer) would be liable for any harm caused by a product.
Worker’s compensation is close to this . . . an employer is
strictly liable for any work-related accidents, though only for
economic damages.