CHAP4 Special Neg Actions Flashcards
Vicarious Liability
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.
Vicarious Liability
Respondeat superior
Respondeat superior is the >legal principle< that an employer is responsible for most harm caused by an employee acting within the >scope of employment
Vicarious Liability
Exceptions to Vicarious Liability
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.
Vicarious Liability
Motor Vehicle Vicarious Liability
- 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.
Premises Liability
American courts have devised various standards of reasonable care for landowners and land users.
-Distinctions depend upon: (two things) ?
- who the injured party is (trespasser, licensee, invitee) and;
- the victim’s reason for being on the land where the owner’s negligence occurred (invited?, not invited?, customer?).
Premises Liability
-Distinctions are made between…
trespassers, licensees, and invitees.
Premises Liability 1/3
Common-law distinction between trespassers, licensees, and invitees:
Trespassers
Landowners have “zero duty” toward trespassers.
Premises Liability 2/3
Common-law distinction between trespassers, licensees, and invitees:
Licensees
- 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.
Premises Liability 3/3
Common-law distinction between trespassers, licensees, and invitees:
Invitees
- 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
Premises Liability
-Many modern courts have abolished the three-tier landowner standards of care in favor of regular negligence theory.
Premises Liability
-Many modern courts have abolished the three-tier landowner standards of care in favor of regular negligence theory.
Attractive Nuisance
The attractive nuisance doctrine states that…
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.
Attractive Nuisance
Four-part test for attractive nuisance: 1 + 2
- The owner must know or have reason to know of the artificial condition on the premises.
- The structure, instrumentality, or condition must be alluring to children and endanger them. They cannot know or appreciate the danger.
Attractive Nuisance
Four-part test for attractive nuisance: (continued) 3 + 4
- The presence of children must reasonably have been anticipated.
- The danger posed to the children outweighs the cost of making the condition safe.
Negligent Infliction of Emotional Distress
Negligent infliction of emotional distress consists of:
Negligent infliction of emotional distress consists of:
- *Outrageous *conduct by the tortfeasor, which…
- The *tortfeasor *reasonably should have anticipated would produce…
- Significant and reasonably foreseeable *emotional *injury to the victim; when…
- The *tortfeasor *breached his or her *duty of reasonable care to avoid causing such emotional harm to the victim; and…
- The victim was a *reasonably *foreseeable *plaintiff.
Negligent Infliction of Emotional Distress
Impact Rule
- 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.
Negligent Infliction of Emotional Distress
Physical Manifestations Rule
- 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.
Negligent Infliction of Emotional Distress
Bystanders
Zone of Danger Rule
- 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.
Negligent Infliction of Emotional Distress
Other Rules Relating to Bystanders
Family relationship rule
Sensory perception rule
California approach
Negligence Per Se
-Negligence per se is negligence that is…
…beyond debate because the law has established a duty or standard of care that the defendant has violated, thereby causing injury to the plaintiff.
Negligence Per Se
-Defenses to negligence per se include:
- Contributory negligence
- Comparative negligence
- Assumption of risk
Negligence Per Se
Plaintiff within Class of Persons Protected by Statute
- *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.
Negligence Per Se
Toxic Torts as Negligence Per Se 1/3
Define
-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.
Negligence Per Se
Toxic Torts as Negligence Per Se 2/3
Elements of negligence per se (1-3):
- Defendant’s actions are >automatically considered negligent< because they *violated a negligence statute or ordinance.
- *Plaintiff must fall within >class of persons protected< by statute.
- > Defendant’s actions< must fall within the area for which the statute was created.
Negligence Per Se
Toxic Torts as Negligence Per Se 3/3
Elements of negligence per se (4-5):
- *Defendant’s statutory violation must >proximately cause< plaintiff’s injuries.
- Negligence defenses apply to negligence per se.
