General Considerations

Question 1

What is vicarious liability?

Answer 1

liability that is derivatively imposed; means that one person commits a tortious act against a third party and another person will be liable to the third party for the act

Question 2

What is the doctrine of respondeat superior?

Answer 2

master/employer will be VL for tortious acts committed by her servant/employee if the tortious acts occur within scope of employment relationship

Question 3

What is frolic and detour?

Answer 3

employee who makes a minor deviation from employer’s business for his own purposes is still acting w/in scope of his employment

if deviation in time or geographic area is substantial, employer is NOT liable

Question 4

When are intentional torts committed by employees within the scope of employment?

Answer 4

1. force is auth. in the employment (bouncer)
2. friction is generated by the employment (bill collector)
3. employee is furthering the business of the employer (removing customers from premises bc rowdy)

Question 5

When can employers be liable for their own negligence?

Answer 5

when neg. select or supervise employees (not VL)

Question 6

What is the general rule re independent contractors?

Answer 6

principal will not be VL for tortious acts of her agent if the agent is an IC, but there are two exceptions

Question 7

What are the two exceptions to the IC liability rule?

Answer 7

1. IC is engaged in inherently dangerous activities (excavating next to public sidewalk or blasting)
2. the duty, bc of public policy considerations, is simply nondelegable (duty of bus. to keep its premises safe for customers)

employer may be liable for her own neg. in selecting/supervising IC (this is not VL)

Question 8

When are partners liable for torts of other partners?

Answer 8

members of partnership or joint venture are VL for tortious condcut of other member when committed in scope and course of affairs of partnership or joint venture

Question 9

What is the general rule re automobile owner and VL?

Answer 9

auto. owner is not VL for tortious conduct of another person driving his auto

exceptions

family car doctrine: owner liable for tort. conduct of immediate family members who are driving w/ owner’s express or implied permission

permissive use: some states impose liability on owner for damage caused by anyone driving w/ owner’s consent

negligent entrustment: owner may be liable for own neg. in entrusting the car to a driver

Question 10

What is the general rule re bailor VL?

Answer 10

bailor not VL for tortious conduct of bailee

Question 11

Even if a party is not VL, how can they be liable (alt. theories)?

Answer 11

for their own negligence: neg. selection of IC, neg. entrustment of auto., neg. supervision of child

Question 12

What is the CL rule re tavernkeepers?

Answer 12

no liability imposed on vendors of intoxicating bev. for injuries resulting from vendee’s intox, whether inj. were sustained by vendee or by a third person as a result of vendee’s conduct

Question 13

What is the modern rule re tavernkeepers?

Answer 13

many states have enacted Dramshop Acts - usually create CoA in favor of any third party injured by intoxicated vendee

Question 14

What is joint and several liability?

Answer 14

where two or more neg. acts combine to proximately cause an indivisible injury, each neg. actor will be J&S liable (liable to PL for the entire damage incurred)

if injury is divisible, each D is liable only for the identifiable portion

Question 15

When is there J&S liability?

Answer 15

Ds acting in concert (this is so even if injury IS divisible)

Question 16

What is satisfaction and release?

Answer 16

s: recovery of full payment is a S - only one is allowed; until satisfied, one may proceed against all jointly liable parties
r: release of one tortfeasor does not discharge others unless expressly provided for in agreement

Question 17

What do the contribution and indemnity doctrines concern?

Answer 17

determine how joint tortfeasors allocate between them the damages they must pay to a successful PL

** these doctrines do not affect how much the PL receives - deal w/ claims by a D against other joint tortfeasors to det. how much of the total award each of them must ultimately pay

Question 18

What is the rule re contribution?

Answer 18

allows D who pays more than his fair share of damages under J&S liability to have a claim against other jointly liable parties for the excess (apportions responsibility among those at fault)

contribution D must be originally liable to PL (if contribution D has defenses that would bar liability, not liable for contribution)

Question 19

What are the methods of apportionment under contribution?

Answer 19

1. comparative contribution - in proportion to the relative fault of the various Ds
2. equal shares (disregards degrees of fault)

Question 20

Is contribution allowed for intentional torts?

Answer 20

no

Question 21

What is the rule re indemnity?

Answer 21

involves shifting the entire loss between or among tortfeasors

Question 22

When is indemnity available?

Answer 22

1. by K
2. in VL situations
3. under strict products liability, and
4. in some jurisdictions where there has been an identifiable difference in degree of fault

Question 23

What is the major difference between contribution and indemnity?

Answer 23

C: both Ds have measurable degree of culpability for the tort,

I: applies when paying D is much less responsible than nonpaying D or is liable on bc VL (relationship)

Question 24

How do comparative fault states apportion damages among Ds?

Answer 24

contribution in proportion to the relative fault of Ds

Question 25

Who can recover for interference w/ consortium?

Answer 25

spouses can recover for loss sustained due to D’s intentional or neg. tortious conduct

parents for loss of child’s services (children can’t recover for loss of parent’s)

Question 26

What kind of governmental acts are not immune from liability?

Answer 26

discretionary (planning and decision-making level) and

ministerial (performed at operational level)