CHAP4 Special Neg Actions Flashcards

1
Q

Vicarious Liability

A

Vicarious liability is the liability of one person, the principal, for the tortious conduct of another, the agent.

ex. employer/employee
* Employment is not an essential element.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Vicarious Liability

Respondeat superior

A

Respondeat superior is the >legal principle< that an employer is responsible for most harm caused by an employee acting within the >scope of employment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Vicarious Liability

Exceptions to Vicarious Liability

A

Examples of activities outside the >scope of employment< :

  • Frolic and detour rule
  • Coming and going rule

Independent contractors
-Persons who hire an independent contractor are not vicariously liable for the independent contractor’s negligence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Vicarious Liability

Motor Vehicle Vicarious Liability

A
  • Courts have held the vehicle owner vicariously liable for the negligence of a driver other than the owner.
  • Many state legislatures have enacted statutes imposing vicarious liability on owners for the negligence of others who drive their vehicles.
  • Statutes that impose vicarious liability are sometimes called motor vehicle consent statutes.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Premises Liability

American courts have devised various standards of reasonable care for landowners and land users.

-Distinctions depend upon: (two things) ?

A
  1. who the injured party is (trespasser, licensee, invitee) and;
  2. the victim’s reason for being on the land where the owner’s negligence occurred (invited?, not invited?, customer?).
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Premises Liability

-Distinctions are made between…

A

trespassers, licensees, and invitees.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Premises Liability 1/3

Common-law distinction between trespassers, licensees, and invitees:

Trespassers

A

Landowners have “zero duty” toward trespassers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Premises Liability 2/3

Common-law distinction between trespassers, licensees, and invitees:

Licensees

A
  • Landowners owe a duty of reasonable care toward licensees.
  • consent must be express or implied.
  • NOT required to discover and correct unknown threats.
  • ex. social guests, door to door salesmen, charitable solicitors.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Premises Liability 3/3

Common-law distinction between trespassers, licensees, and invitees:

Invitees

A
  • Landowners owe >highest duty< of reasonable care to invitees.
  • sufficient that the landowner only encourage the invitee to visit.
  • must repair >known dangers< as well as discover and correct >unknown risks
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Premises Liability

-Many modern courts have abolished the three-tier landowner standards of care in favor of regular negligence theory.

A

Premises Liability

-Many modern courts have abolished the three-tier landowner standards of care in favor of regular negligence theory.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Attractive Nuisance

The attractive nuisance doctrine states that…

A

The attractive nuisance doctrine states that: landowners owe a higher duty of reasonable care to trespassing children who are attracted by swimming pools, abandoned wells, railroad tracks, or unused machinery.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Attractive Nuisance

Four-part test for attractive nuisance: 1 + 2

A
  1. The owner must know or have reason to know of the artificial condition on the premises.
  2. The structure, instrumentality, or condition must be alluring to children and endanger them. They cannot know or appreciate the danger.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Attractive Nuisance

Four-part test for attractive nuisance: (continued) 3 + 4

A
  1. The presence of children must reasonably have been anticipated.
  2. The danger posed to the children outweighs the cost of making the condition safe.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress consists of:

A

Negligent infliction of emotional distress consists of:

  1. *Outrageous *conduct by the tortfeasor, which…
  2. The *tortfeasor *reasonably should have anticipated would produce…
  3. Significant and reasonably foreseeable *emotional *injury to the victim; when…
  4. The *tortfeasor *breached his or her *duty of reasonable care to avoid causing such emotional harm to the victim; and…
  5. The victim was a *reasonably *foreseeable *plaintiff.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Negligent Infliction of Emotional Distress

Impact Rule

A
  • A minority of courts apply the impact rule and insist that >some physical impact< must accompany the emotional injury.
  • The purpose of the impact rule is to >protect against false< claims of emotional distress.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Negligent Infliction of Emotional Distress

Physical Manifestations Rule

A
  • The physical manifestation rule requires that in addition to mental suffering, the >plaintiff must experience physical symptoms< as a result of the emotional distress.
  • Most courts have >abandoned the impact rule< in favor of the physical manifestations rule.
17
Q

Negligent Infliction of Emotional Distress

Bystanders

Zone of Danger Rule

A
  • The zone of danger rule is used in some states to address the emotional injury suffered by a witness due to the tortfeasor’s negligent act.
  • Under this rule, only >bystanders who fall within the zone of danger< can recover for negligent infliction of emotional distress.
18
Q

Negligent Infliction of Emotional Distress

Other Rules Relating to Bystanders

A

Family relationship rule
Sensory perception rule
California approach

19
Q

Negligence Per Se

-Negligence per se is negligence that is…

A

…beyond debate because the law has established a duty or standard of care that the defendant has violated, thereby causing injury to the plaintiff.

20
Q

Negligence Per Se

-Defenses to negligence per se include:

A
  • Contributory negligence
  • Comparative negligence
  • Assumption of risk
21
Q

Negligence Per Se

Plaintiff within Class of Persons Protected by Statute

A
  • *Plaintiff must be within the >class of persons< protected by the statute or ordinance *and the statute must be designed to *protect that class of persons from the >type of harm< that occurred.
  • Absolute liability is >sometimes mislabeled< as negligence per se.
22
Q

Negligence Per Se

Toxic Torts as Negligence Per Se 1/3

Define

A

-Statutes sometimes declare that >violations of regulations regarding< the transportation, disposal, or management of >hazardous or toxic substances< create a presumption of negligence as a matter of law.

23
Q

Negligence Per Se

Toxic Torts as Negligence Per Se 2/3

Elements of negligence per se (1-3):

A
  1. Defendant’s actions are >automatically considered negligent< because they *violated a negligence statute or ordinance.
  2. *Plaintiff must fall within >class of persons protected< by statute.
  3. > Defendant’s actions< must fall within the area for which the statute was created.
24
Q

Negligence Per Se

Toxic Torts as Negligence Per Se 3/3

Elements of negligence per se (4-5):

A
  1. *Defendant’s statutory violation must >proximately cause< plaintiff’s injuries.
  2. Negligence defenses apply to negligence per se.