The theory of strict liability: if someone loses control as the result of a health failure, they have to pay. Why is this model a good fit for products? Because manufacturers are in a position to pass the costs on to consumers either by insuring or increasing safety. Why not apply this model to, say, traffic smashes? Because those can happen entirely without negligence (e.g., if they have a seizure).
So we don't always want a defendant to pay for the plaintiff's injury: that might not be fair if there's no negligence by the defendant. See, e.g., Note 7 (p. 8), re: Maloney v. Rath, where the defendant is not strictly liable for the violation of a traffic law due to a defective repair). Proponents of strict liability would say that the driver is better able to check for flaws than the person who got hit, and that's true after all. Note that Hammontree case cites Maloney.
So back at Hammontree, the person with the medical flaw is in a better position to exercise care than the people who get smashed. But the court declines to impose strict liability because they prefer negligence.
Note that the plaintiffs withdraw their claims of negligence, probably because they can see that's not going to work, if the defendant was medicated, and certified, and under doctors' supervision, etc.
The court says that insurers shouldn't bear all costs of injuries (e.g., if there were strict liability) in cases like this-- it would be chaos. The law of negligence is clearer and more well-developed. If we want to go this way, the legislature can articulate a standard, but it will be a complex one.
Why isn't strict liability popular? Because it's expensive. Is it more fair to make the plaintiff pay than the injured party? It's problematic: the driver was the one who had the instrumentality of the damage, but he was not at fault. When there's no fault, it's hard to know how to allocate costs. Sometimes there are just accidents, and if we have strict liability, we assign costs to people who are not at fault, and that upsets us. It also has a chilling effect on ventures in general.
There were some important procedural wrinkles here. The plaintiff looked at the facts, saw that negligence was a long shot, and withdrew that claim, seeking summary judgment/directed verdict on the basis of strict liability.
Note also that the employee is not absolved just because there is vicarious liability for the employer.
So, the length of Swensen's shift pretty much implies that she'll have to eat something. Anyway, she is sued for negligent driving, and her employer (Burns) is also.
So the court can set limits on when to hold an employer liable. The limits aren't about the employer's behavior, though: they focus on the nature of the employee's actions, and whether they are within the scope of employment or not.
Note that there's no vicarious liability if there isn't liability for the employee (the employer might be found to be at fault on some other theory, but not viacrious liability).
So, at trial, and on appeal, the question of vicarious liability seemed to require physical presence. But the UT SC applies Birkner. Know the Birkner test. The court says that reasonable minds could differ on all three criteria. A jury could say that attendance to certain personal needs is implied in the scope of employment (breathing, obviously; bathroom; maybe eating also). Clearly it's within the hours, but maybe the boundaries issue is debatable. Disagreement on any single issue would have been sufficient.
This test seems nice and reasonable, but it is vulnerable to the "outrageous" exploit: if the employee does something really unusual, we feel like the test isn't satisfied. See, e.g., Note 5 on p. 23: striking an employee is not within the scope of employment (even though it was in the course of disciplining a subordinate). So the test is tempered sometimes by our sense of outrage. Note that we're not talking about intentional torts here.
Why should the employer suffer the consequences of this employee's negligent act? Because employer decisions have a lot of influence on the conduct of the employees: we want them to supervise, discipline, and hire good employees. And discharge negligent ones. And maybe structure their workflows so that people aren't put in situations where risk is incurred. Additionally, just like the doctrine of strict liability, we're trying to put the burden on the party best able to take control, and absorb the cost of risk mitigation. And, like strict liability, the employer can be liable whether they themselves were negligent or not.
Lots of employees, after all, are judgment-proof. What is the point of suing them if they don't have assets to cover the injuries they've caused? Because only the person with the resouces can bail the victim out of their misery-- and we assume they're in control, after all.
There's an exception to the exception: apparent agency can make an employer liable.
Would a sign saying "these guys do not work for us, come and see them at your own risk" count? In this case there was no explicit representation, but these guys sat in the hospital, and they were the only ones doing radiology work there.
The concurrence goes along, because of precedent, but would like more predictable and efficient outcomes. A statute would prevent two similar fact patterns from producing different results, and would be more clear (i.e., to define a non-delegable duty for hospitals where the patient doesn't have realistic opportunity to shop for alternative services).
Trivia: Judge Shaw is the father-in-law of Herman Melville
So there's evidence that the blow was direct, but not intentional. So which category (trespass or trespass-on-the-case) should this fall into?
Neither trespass nor case will lie unless the plaintiff can show that the defendant intended to injure the plaintiff (not the case here), or injured the plaintiff negligently. So we don't have to worry about that distinction any more, and we don't have to fret about who bears the burden of proof.
Also, where the defendant is not at fault (pure accident) there's no liability: it's all about fault. So how do we determine if there was fault vs. accident? The plaintiff has to show that the defendant didn't take proper precaution/use proper care. Plaintiff must show the absence of due care.
It is said that this opinion was planned to vastly transcend the facts in question, and was really written to make the world safe for industry. By putting the burden on the plaintiff in all cases, you're creating a circumstance where there will be more uncompensated accidents, but risky ventures will be thereby encouraged. And that's a good thing for fostering industrialization. So it's a decision about dogs, but it has implications for commerce at large.
The lower court finds for the zapped kid. Cardozo overrules, finding for the defendant.
The defendant's acts were lawful. There's a duty to use caution, but there's no evidence that this duty was ignored. Nothing but prophecy could have foreseen this kind of an action.
Ordinary caution does not require foreseeing extraordinary peril.
Also, global insulation is too expensive.
This is a clever use of facts-- Cardozo tells us what to think. We can't require defendants to take all precautions against extraordinary perils, but is universal insulation the only alternative? What about a warning sign? The court doesn't go into that. See note 3 on p. 42 (the plaintiff trips over the mechanic who is working on a cash register)... Cardozo again... Same thing: the mechanic is required only to have ordinary pre-vision, not extraordinary pre-vision.