General Consideration for All Tort Cases

Question 1

Vicarious Liability

Respondeat Superior: G/R

Answer 1

Employers are liable for torts or employees committed within the scope of employment. Generally no liability for independent contractors

Question 2

Vicarious Liability

RS: Intentional Torts

Answer 2

GR: ITs are not within the scope of employment.
Exceptions:
1. Force is authorized
2.Friction is generated by this type of performance
3. Employee is trying to further employer’s business.

Question 3

Vicarious Liability

Automobile Owners/Drivers

Answer 3

GR: Automobile owners are NOT vicariously liable for the torts of other drivers.
Exceptions:
1. Family Car Doctrine: Household member using with permission
2. Permissive Use Doctrine: Anyone using with permission

Question 4

Vicarious Liability

Parents/Children

Answer 4

GR: Parents are NOT vicariously liable for the torts of their children.
Exception: Intentional torts up to a limited dollar amount by statute.

Question 5

Vicarious Liability

Bar Exam Note

Answer 5

Must be able to recognize when the D will be vicariously liable and when they will be liable for own negligence. eg. lending car to drunk driver– not vicariously liable (if no statute applies) but are liable for own negligence for lending car.

Question 6

Parties - Multiple Ds Issues

Releases

Answer 6

Rule: A release does not release other tortfeasors unless it expressly does so.

Question 7

Parties - Multiple Ds Issues

Joint and Several Liability

Answer 7

Rule: where multiple acts cause indivisible injury, each D will be potentially liable for the ENTIRE JUDGMENT AMOUNT
TIP: Assume that joint tortfeasors are jointly and severably liable (unless expressly says otherwise).

Question 8

Parties - Multiple Ds Issues

Contribution and Indemnification

Answer 8

It is used where D, because of joint and several liability, has paid more than his fair share of the judgment and wants the other Ds to contribute or indemnify.

Question 9

Parties - Multiple Ds Issues

Contribution

Answer 9

Rule: Where Ds are more or less equally responsible, they will ultimately share the judgment amount equally. As long as the D from who contribution is being sought is also liable.
It is not applicable to Intentional Torts.

Question 10

Parties - Multiple Ds Issues

Indemnification

Answer 10

Rule: Can get everything back from other Ds
Grounds:
1. Other D is a lot more responsible
2. Vicarious Liability 
3. Indemnification in product cases.

Question 11

Parties - Multiple Ds Issues

Comparative Contribution**

Answer 11

Rule: D’s will ultimately split up judgment according to “relative fault.”
Rem. J/S liability will still apply–so each D will own P if it comes down to it, the entire amount.
Tip: CC effectively eliminates traditional contribution and the first ground for indemnification.

Question 12

Survival and Wrongful Death

Answer 12

These are derivative recoveries. Meaning, you will stand in no better position than decedent would have stood in had she lived. So contrib. comp. fault rules apply.

Question 13

Tort Immunities

Answer 13

Intra-family - OUT
Charitable - OUT
Governmental– exists but statutory

Question 14

Tort Immunities

Governmental v. Proprietary

Answer 14

Rule: Immunity is available for governmental functions. NOT for proprietary.
To determine proprietary: ask whether a private person normally perform function. if yes-then prop.

Question 15

KANSAS: Vicarious Liability

*Automobile Owner for Driver

Answer 15

KS has never adopted the family car doctrine

Question 16

KS: VL

* Parent for child

Answer 16

By Statute in KS, parents are liable for up to $5,000 in actual damages for any willful and malicious personal injury or damage to property by their minor children.
If injury or damage is result of parental neglect the 5k limit does not apply.
Recovery for bodily injury is limited to actual medical expenses.
Parental liability imposed when both the act and its harmful result were intended

Question 17

KS: VL

* Tavernkeepers

Answer 17

NO DRAM SHOP ACT
NO liability or coa in favor of those injured as a result of a violation of the liquor laws.
* can’t blame people who sell or furnish liquor for damages and injuries caused by drunk people.

Question 18

KS: Multiple D Issues

*Joint and Several Liability – stat limitations

Answer 18

KS comparative negligence statute abolished joint and several liability and replaced it with the proportionate liability.
J&S Liability is reserved for ITs
Also, ct will not reduce the fault of a negligent tortfeasor by the intentional misconduct of another from whom it had a duty to protect the P. (eg. damages from school’s negligent failure to report suspected child abuse will not be reduced by intentional fault of abuser).

Question 19

KS: Survival and Wrongful Death

*Survival of Tort actions

Answer 19

In KS, tort actions for personal injury, injury to real or personal property, and fraud survive the death of either P or D. However, actions for libel, slander, malicious prosecution, and nuisance abate on death of either party.

Question 20

KS: Wrongful Death– Measure of Recovery

Answer 20

In Ks, wrongful death statute allows recovery of damages for economic loss to beneficiaries without limitation and allows damages for noneconomic loss with a cap of $250K per decedent, regardless of the number of beneficiaries.
The $250K limit on noneconomic loss is applied after any deduction for the decedent’s comparative fault.

Question 21

KS: Tortious Interferences With Family Relationships

*Husband-Wife

Answer 21

In KS, the right to recover for loss of consortium vests in the spouse who files an action for personal injuries, not the spouse who actually suffers the loss of consortium.
The award of damages is to the P for the benefit of the spouse.

Question 22

KS: Tort Immunities

*Intra-Family

Answer 22

KS has abolished family tort immunities
- h/e parents are immune from liability when the child’s claim relates to the exercise of parental discretion or authority.

Question 23

KS: Tort Immunities

* Governmental Tort Immunity– State govt and municipalities

Answer 23

KS Torts Claims Act applies to all state and municipal govt entities– Act hold the govt entity liable for all negligent and wrongful acts or omissions of its employees in the course and scope of their employment in same manner that a private person is liable for the torts of his employee.

Question 24

KS: Tort Immunities

Govt Tort Immunity–Exceptions

Answer 24

Immunity is retained for:

1) discretionary acts and policy decisions
2) failure to adopt or enforce a written personnel policy protecting a person’s health or safety, unless a duty of care independent the policy is owed to the P;
3) Assessment and collection of taxes;
4) Malfunction or removal of traffic signs or signals unless the agency had notice an failed to repair or replace the sign within reasonable amount of time.
5) Failure to make a proper health or safety inspection of private property;
6) Failure to provide, or the method of providing, police or fire protection; and
7) Claims from injuries resulting from the use of public property intended or permitted for recreational purposes, unless the entity or employee was grossly and wantonly negligent.

Question 25

KS: Tort Immunities

Govt– Max Liabiltiy

Answer 25

Liability under the Act is limited to $500K per occurrence except where there is excess insurance, in which case liability may exceed the $500K limit up to the amount of insurance coverage.

Question 26

KS: Tort Immunities

Immunity of Public Officials

Answer 26

If a judgment is recovered against an employee who was acting in the scope of employment the governmental entity must indemnify the employee, except for damages based on actual fraud or actual malice, punitive damages, and prejudgment interest.

Question 27

KS: Tort Immunities

Charitable Immunity

Answer 27

KS has abolished.