Liability Flashcards
Joint Liability
Each of several D tortfeasors can be held responsible for P’s entire loss if
1. Acting in concert and
2. Other tortfeasors are unable to pay or
3. It is impossible to determine which D caused P’s injury
= Ds have to bear risk of insolvency of all other Ds
Several Liability
Each D has an obligation to pay only their proportionate share for causing P’s loss
= P has to bear risk of insolvency of all other Ds
Joint and Several Liability
- D tortfeasors bear joint liability to P (each can be held responsible for P’s entire loss) but
- Bear several liability amongst themselves (must only pay proportionate share if all Ds are solvent)
= Ds have to bear risk of insolvency of all other Ds
Tortfeasor Liability - Minority
Several liability (TN’s view)
- Each D has an obligation to pay only their proportionate share for causing P’s loss
= P has to bear risk of insolvency of all other Ds
Tortfeasor Liability - Majority
Joint and several liability
- D tortfeasors bear joint liability to P but
- D tortfeasors bear several liability amongst themselves
= Ds have to bear risk of insolvency of all other Ds
Tortfeasor Liability - TN
Several liability (minority)
- Each D has an obligation to pay only their proportionate share for causing P’s loss
= P has to bear risk of insolvency of all other Ds
In joint and several liability, if P can show a group of Ds caused P’s injury, can P obtain full judgment against one of the Ds in the group?
Yes
Before 2013, what did TN rely on for tortfeasor liability?
McIntyre v. Balentine = abolition of joint and several liability by judicial action
After 2013, what did TN rely on for tortfeasor liability?
Statute = abolition of joint and several liability by legislation
Exceptions to TN tortfeasor liability
Ds may be held jointly liable in
- Civil conspiracy cases - strict liability
- Breach of warranty cases - product liability
Contribution
- 1 D seeks to recover from his co-D for the co-D’s portion/share of responsibility to P
- Apportionment of loss between multiple tortfeasors
Indemnity
- D1 seeks to recover his co-D the full amount of loss paid to P
- Loss is entirely shifted from 1 tortfeasor to another (all-or-nothing liability)
Vicarious liability
One party is held responsible for wrongful acts of another by virtue of special relationship or statute connection between them
Respondeat Superior in Intentional Torts
Focus = employee’s purpose or motive to determine if employee was acting within scope of employment
Respondeat Superior in Negligence
- Employee’s tortious conduct has to be committed within the course and scope of their employment
- Typically a question of fact for jury
Frolic and detour
Stepping away/deviation from master’s business (exception to respondeat superior requiring jury question)
When can respondeat superior be determined as a matter of law?
Frolic and detour = stepping away/deviation from master’s business
Strict Liability
Imposition of liability without finding of fault
Strict Liability for Animals
Strict liability for wild animals if
- Harm results from a dangerous propensity
- That is characteristic of that class of wild animal
Defenses to Strict Liability for Animals
- Assumption of risk
2. Contributory/comparative negligence
TN’s Dog Bite Statute - Duty
Dog owners will be held financially responsible for failure to keep dog under reasonable control, keep from running at large
TN’s Dog Bite Statute - Breach
Breach is subject to civil liability for anyone injured by dog in
- Public place or
- Lawfully on another’s private property
- Regardless of knowledge or showing of dangerous propensities
TN’s Dog Bite Statute - Liability
- Rejects one-bite rule
- Imposes strict liability
- Holds dog owner financially responsible
TN’s Dog Bite Statute - Exception
If dog’s owner is owner/tenant of residential, farm, or other noncommercial property where bite occurred, claimant must prove
- Actual or constructive knowledge of
- Dog’s dangerous propensities
Strict Liability for Activities
- Non-natural use of land
- Or anything likely to cause mischief
- Is kept at owner’s own peril
Defenses for Strict Liability for Activities
- Act of God
2. Contributory negligence
Ultrahazardous
Looks at activity itself
Abnormally dangerous
Looks at context of activity
Is transportation of chemicals considered abnormally dangerous?
No, accidental spill is negligence not strict liability
Strict Liability for Activities - TN
Actor is held strictly liable for ultrahazardous activities
Examples of Strict Liability - TN
- Blasting
- Storage of explosives
- Storage of harmful chemicals
- Harboring of wild animals
Nuisance Types
- Public nuisance
2. Private nuisance
Public nuisance
- D’s conduct
- unreasonably or substantially interferes
- with a common right
- of the public
Private nuisance
- D’s conduct
- unreasonably or substantially interferes
- with the use and enjoyment
- of P’s private property
Public nuisance types
- Interferes with use by public of public space
- Injures large number of people
- Private person suffers special injury beyond that suffered by the community at large
In cases of nuisance, when does court have equitable power to substitute permanent damages for both past and future harm?
- Large disparity between nuisance’s harm and economic effect of injunction to abate nuisance and
- Nuisance is permanent and unabatable
= buying the ability to continue the nuisance
In cases of nuisance, when can a court use injunction?
- Where public interest is at stake
2. Even if P assumed the risk = conditional on P paying costs of abatement
What does TN’s joinder allow?
Allows P to avoid any statute of limitations defense of new D
In TN’s joinder, when may P add non-party as D?
- If a D in answer alleges the fault of a person not a party to the action,
- Then P may add the non-party as a D within 90 days
In TN, what is ultrahazardous activity that makes an actor strictly liable?
Those presenting an abnormally dangerous risk of injury to persons or their property
