Torts Class Notes 12/2/03


Lots of multiple choice and one essay question.


On Monday, go to the auditorium for class.  Turn in one report per group, due Friday at 9 AM.  (Rather than Thursday)


Abnormally dangerous activities are unusual and usually involve great danger.  There are three factors that restate the B < pL test.  Is it really dangerous?  It is unjustifiably dangerous?  Is it common to the area?  Is it being done in the wrong place?  Does the activity has value to the community?


Why do we have vicarious liability?  Employers might reduce the number of accidents if held liable.  We want to spread the costs of the plaintiff’s harm through the community.  The employer has control of the employee and arguably should be liable for the tort.  Also, the employer has deeper pockets than the employee.


What’s within the scope of employment?  If the employer tells the employee to do something safely and fails to do so, but it’s in the scope of employment, the employer may be held liable.  If a cook is flipping a knife and talking with a customer, injuring that customer, that’s within the cook’s scope of employment.  It’s a factual question for a jury.


What about intentional torts on the job?  Unless the intentional tort is within the scope of that individual’s employment (a bouncer or security guard), the employer isn’t responsible.  These torts are not seen as furthering the interests of the employer.


We also won’t impose vicarious liability in the situation where an employee abuses his power as conferred by the employer.  It depends on how far outside the scope of employment the employee goes.  Some courts will say that if the employer created the power that is abused by the employee, the employer may be responsible.  So there’s a split.


There are a few factors that may be considered when you’re figuring out whether an employer should be vicariously liable:


1.     It is of the kind he is employed to perform.

2.     It occurs substantially within the authorized time and space limits.

3.     It is actuated, at least in part, by a purpose to serve the employer.

4.     If force is intentionally used by the servant, the use of force is not unexpected by the master.  That is, intentional torts are typically not covered.


Independent contractors are different from employees.  It is favorable to get your employees described as independent contractors for various reasons.  Vicarious liability only applies to employees and not independent contractors.  How do you know who’s an independent contractor?  It’s a factored test.  You look at the Restatement factors and weigh whether, on balance, the person is more like an independent contractor or more like an employee.  The main factor is control: how much control does the employer have over the person?  The more control they have, the more likely we’ll find that the person is an employee.


Here are the rules:


1.     How much control does the employer have over the details of the work?

2.     Is the actor engaged in a distinct occupation or business?

3.     Does the employer have to supervise?

4.     Who supplies the tools and place of work?

5.     How long is the person employed?

6.     Are they paid by the hour or to do a particular job until complete?

7.     How do the parties understand the relationship?


Murrell v. Goertz


Goertz and Murrell got in an argument when Goertz was making collections for the newspaper.  Goertz slapped Murrell.  Is the newspaper responsible for the injury caused to Murrell?


What degree of control does the newspaper have over Goertz?  The court finds it persuasive that Goertz was hired by another contractor rather than the employer themselves.  The publishing company doesn’t even know Goertz works for them.  Even though they provide the paper and the rubber bands and the route, they appear not to have much control over Goertz.


Say you take your car into the dealership because it has a paint chip.  The dealer calls you and says they’re sending someone to your house to repair the paint chip.  That person negligently repairs your car and causes damage.  How do I figure out whether the person who comes is an independent contractor or an employee?


Maloney v. Rath


When you take your car to the mechanic and they don’t fix your brakes right, how come you are liable?  The court says that the duty to keep up your car is non-delegable.




Lawyers negotiate a lot.  You negotiate everything.  Even if you don’t do ADR, you negotiate.  A typical litigator is involved much more frequently in negotiation than litigation.


There are three basic styles of negotiation:


1.     Adversarial Negotiation

2.     Problem-Solving Negotiation

3.     Conditional Problem-Solving Negotiation


Today, most lawyers will describe themselves as problem-solving negotiators rather than adversarial negotiators.  However, problem-solving negotiators can get hurt by adversarial negotiators.


Classic adversarial negotiation


·        Misleading

·        Overstating

·        High Demand

·        Hide Information

·        Few Concessions

·        Apparent Commitment to Positions

·        Use of Threats/Anger

·        Control of Process


Many of these tactics will end in failed negotiations.


Problem-solving negotiation


·        Interests not positions

·        Invent options for mutual gain

·        Use objective criteria

·        Look at the problem, not the people

·        Consider BATNA


What do the parties really want?  Do they need money, and if so, what for?  It’s hard to find interests to shift around in torts cases.  Are there other things that could compensate the plaintiff other than the payment of money?  Are there things the plaintiff wants that the defendant could provide?


Can you figure out after talking to the other side what they might want?  Is there a win-win?


Don’t let the people get in the way of solving the problem.  Sometimes, lawyers can be part of the problem.


BATNA is “best alternative to a negotiated agreement”.  If the negotiations fail, what happens?  Will I win in court?  How much will it cost to litigate?  What are the probabilities of winning or losing?


Preparation for negotiation


·        Consider the client’s interests and priorities

·        Research the other side’s interests and priorities

·        Identify each client’s bottom line and intermediate positions

·        Anticipate the other side’s bottom line

·        Anticipate what negotiation approaches the other side will use

·        Decide which negotiation strategy to use

·        What info will you seek to obtain and how?

·        What info will you disclose and when?

·        What will be your opening position?  When will you communicate it?  What interests does it advance?

·        How will you defend your opening offer?

·        What counter-arguments do you expect?

·        What will be your concessions?  How big will they be?

·        What are your principles for making concessions and not going further?

·        What is your BATNA?

·        What is the other side’s BATNA?


Back to Class Notes