Contributory Negligence

Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

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Christensen v. Swenson

“The Lunch Break”

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Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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Kuehn v. Inter-city Freight

“Road Rage”

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Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

Cooper seeks to dismiss the case against her for two independent reasons:

Cooper did not breach a duty of care to Boyd.
Cooper did not proximately cause Boyd’s injuries.

Greene seeks to dismiss the case against her for two independent reasons:

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water”

Zuchowicz v. United States: “Prescribed Drug Overdose”

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit”

Summers v. Tice: “Hunting Party Whodunnit”

Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit”

Sindell v. Abbott Laboratories: “Toxic Harms”

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Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

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Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode”

Wagner v. International Railway Co.: “The Injured Rescuer”

Benn v. Thomas: “The Time-Delayed Heart Attack”

Steinhauser v. Hertz Corp.: “Sudden Schizophrenia”

Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car”

Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car”

Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

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Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand”

Christensen v. Swenson: “The Lunch Break”

Kuehn v. Inter-city Freight: “Road Rage”

Sage Club v. Hunt: “The Violent Bartender”

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Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Where are we?

Negligence

~~Elements of a cause of action:~~

~~— Duty~~

~~— Breach~~

~~— Causation~~

~~— Harm~~

Defenses:

— Contributory or Comparative Negligence

— Assumption of risk

Contributory Negligence

Reconciling

Butterfield v. Forrester

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

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Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

Can the negligent plaintiff recover damages?

That’s not

a flowchart!

It’s cool

Can the negligent plaintiff recover damages?