General tort considerations & misc. topics Flashcards
Define vicarious liability
Liability that is derivatively imposed. Person A commits tort against person B, and person C is vicariously liable for person A’s conduct.
There are 7 situations in which you have vicarious liability
- Respondeat superior
- independent contractors
- Partners and joint ventures
- Automobile owner for driver
- Bailor for bailee
- Parent for child
- Tavernkeepers
A master or employer will be vicariously liable for torts committed by her servant or employee if the tortious act occurs ____
Within the scope of the employment relationship
- If an employee makes a ______ deviation from his employer’s business for his own purposes, he is still acting within the scope of his employment.
- What is this called?
- Minor
2. Frolic and detour
Generally, intentional torts committed by an employee are not within the scope of employment. Name 3 exceptions.
- Force is authorized in the employment, like a bouncer.
- Friction is generated by the employment, like a bill collector.
- The employee is furthering the employer’s business, removing rowdy customers from the premises.
When an employer negligently selects or supervises their employees or independent contractors, the employer is vicariously liable for their employees’ and independent contractors’ conduct. True or false?
False. The employer is liable directly for his own negligence in selecting or supervising the employee or independent contractor.
In general, a principal is not vicariously liable for tortious acts of an independent contractor. There are 3 broad exceptions, name them.
- The independent contractor is engaged in inherently dangerous activities, like blasting or excavating by a public sidewalk.
- Where there is a non-deligible duty for public policy reasons, like the duty to use due care in building a fence around an excavation site
- Injury to invitee on property
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member when?
When the tortious conduct is committed in the scope and course of the affairs of the business.
Generally, an automobile owner is not vicariously liable for tortious conduct of another person driving his car. There are, however, 4 theories under which a car owner can be held liable for another drivers tortious conduct in his car. Name the 4
- The family car doctrine: immediate family and household members who are driving with permission.
- Permissive use: anyone driving with the owner’s consent -> applies in NY
- Negligent entrustment. (This is not vicarious liability.)
- When someone drives your car running an errand for you -> they’re your agent
The bail or is not vicariously liable for the tortious conduct of the bailee. However, the bail or can be liable for?
Negligent entrustment. This is not vicarious liability
Often by statute, states make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. There are 2 other ways parents can be found liable for their child’s conduct
- The child is acting as an agent for the parent and commits a tort
- The parent is liable for his or her own negligence in allowing the child to do something, like use a dangerous object.
Tavernkeepers were not liable at common law for their customers intoxication. This is not vicarious liability, but most modern states have enacted ________ Acts or courts imply it based on the negligence of the tavern keeper
Dramshop. This is just ordinary negligence, serving people who are already drunk or serving a minor.
When there are multiple defendants, joint and several liability means?
It means that each defendant is liable to the plaintiff for the entire damage incurred. If the injury is divisible each defendant is liable only for the identifiable portion.
When defendants are acting in concert injury plaintiff, each of them is?
Jointly and severally liable.
Satisfaction with respect to joint tortfeasors means what?
It means full recovery of payment by plaintiff, which is satisfaction. Until there is full satisfaction, plaintiff may proceed against all liable parties.
If one twit tortfeasor is released among more than 1 joint and severally liable tortfeasors, are the others released?
No.
What is the difference in contribution and indemnity?
Contribution is where both defendants have a measurable degree of culpability. Indemnity applies when one party is much more responsible than the other.
Is contribution available for intentional torts?
No
Where a few defendants are jointly and severally liable and one defendant pays more than his share, he is entitled to?
Contribution
Define comparative contribution
And allocation of relative fault for the injury
With respect to apportionment of liability, when is divided evenly among defendants it is called the ____ shares?
Equal shares
Indemnity involves _____ between or among tortfeasors
Shifting the entire loss between or among tortfeasors
What are the 3 circumstances under which indemnity is available?
- By contract
- In vicarious liability situations
- Under strict products liability
Generally, tort actions survive the death of one or more parties. However, _____ tort claims expire upon the victim’s death
Towards invading intangible personal interests, like defamation, invasion of right to privacy, malicious prosecution
- Who may bring a wrongful death suit?
- Recovery is allowed only to the extent that ___?
- Role of contributory negligence?
- May be brought by spouse and next of kin
- Recovery allowed to the extent deceased could have recovered in action had he lived.
- Contributory negligence of decedent or of potential beneficiaries reduces recovery in comparative negligence states
Tortious interference with family relationships may be brought with respect to which 2 types of relations? Define each
- Husband-and-wife may bring action for interference with consortium and services based on defendants tortious conduct against other spouse
- Parent and child: a parent may sue for loss of child services due to defendants tortious conduct, but a child may not sue for tortious injury to the parent.
3 types of immunities to tort claims
- Intra-– family tort immunities (with regard to personal injury). However most states have abolished husband – wife immunity.
- governmental tort immunities
- Charitable immunity (most jurisdictions have eliminated)
Under the Federal tort claims act, the United States has waived immunity for tortious acts. But immunity still attaches for 9 potential tortious actions. Name them
- Assault
- Battery
- False imprisonment
- False arrest
- Malicious prosecution
- Abuse of process
- Libel and slander
- Misrepresentation and deceit
- Interference with contract rights
Where state or local governmental immunity has been abolished, the public duty rule provides what?
It provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the government body and citizen.
Immunity is not waived for government actions that are characterized as ______
Discretionary
Liability attaches for ____ actions of government
Ministerial
Public officials carrying out official duties are immune from tort liability for 1. ____ acts done without 2. ________.
- Discretionary acts
2. Done without malice or improper purpose
What does it mean to say that an action for interference with family relationships is “derivative”?
Recovery for interference depends on the potential success of the injured family member’s own action. Thus, any defense that would prevent recovery by the injured family member will also prevent recovery in the derivative action for interference with a family relationship. Furthermore, a defense against a family member seeking such a derivative recovery may also defeat the action.
A rescuer is a foreseeable plaintiff so long as?
So long as the rescue is not WANTON considering all factors (including degree of emergency, excitement, speed of rescue, etc.)
Can Assumption of risk be invoked against a rescuer?
Yes, considering all circumstances. Meeting a rescuer has to undertake WANTON rescue in order to assume the risk.
Respondeat superior for intentional torts of D? Generally and 3 exceptions
Generally no, except where
- use of force is in scope of employment (bouncer)
- employee in animosity job (repo man)
- if tort done in misguided effort to further employer’s purposes
If you give your kid a gun or give a drunk your car keys, are you vicariously liable?
No. You’re directy liable for negligent entrustment or negligent supervision. You didn’t act reasonably.
Difference b/t vicarious liability and direct liability? Look for the principal to be directly liable for 3 things
Look for the principal to be directly liable for:
- negligent supervision
- negligent hiring
- negligent entrustment
2 situations where out of pocket gets indemnification:
- vicariously liable defendant gets indemnity from active tort feasor
- retailer gets in indemnification from manufacturer in SL products case
injury to spouse, you get loss of consorsium for 3 items?
lets uninjured spouse recover for
- loss of household services
- loss of society (partnership)
- loss of sex
