Liability Issues

Question 1

Nondelegable Duties

(duties that cannot be assigned to another to avoid liability)

Answer 1

1) Maintain safe conditions on premises open to public (eg, store, restaurant)
2) Safely perform activities that:

• are abnormally or highly dangerous
• infringe on private property right (eg, nuisance, trespass)
• are regulated by law or
• are conducted in public place

Question 2

Vicarious liability

Independent Contractors

Answer 2

A principal is generally not vicariously liable for torts (eg, negligence) committed by his/her independent contractor.

But vicarious liability can be imposed when the independent contractor’s work involves a nondelegable duty—ie, a duty of care that cannot be assigned to a third party to avoid liability.

• This includes a land possessor’s duty to safely conduct activities on the land that pose foreseeable risks of harm to others (eg, construction, repairs).

Question 3

Dram-shop Laws

Answer 3

Many jurisdictions have enacted dram-shop laws, which allow a plaintiff injured as a result of another’s intoxication to sue the business (eg, bar, restaurant) that provided the alcohol to the intoxicated person.*

(*Dram-shop laws exist to circumvent the common-law rule that sellers of alcohol are not liable for injuries resulting from a buyer’s intoxication.)

To sustain a cause of action under a dram-shop law, the plaintiff generally must prove the following:

1) The business sold alcohol to a minor or someone who was visibly intoxicated at the time of the sale.
2) The plaintiff’s injuries were a proximate result (foreseeable consequence) of that person’s intoxication.

Several jurisdictions have also extended liability to social hosts who serve alcohol to visibly intoxicated guests.

• But social-host liability is not recognized by the common law, which considers the plaintiff’s consumption—not the host’s provision—of alcohol to be the proximate cause of the plaintiff’s injury.

Question 4

Essay Rule Statement for Vicarious Liability

Answer 4

Vicarious liability is a form of strict liability in which one person is liable for the negligent actions of another.

An employer is liable for the tortious conduct of an employee that is within the scope of employment.

Question 5

Joint & Several Liability

Answer 5

Under the doctrine of joint and several liability (which you should assume applies on the bar exam, unless you are told otherwise):

• each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

The plaintiff has the choice of collecting the entire judgment from:

i) one defendant,
ii) the entire judgment from another defendant, or
iii) portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.