Midterm

Question 1

Policy Justifications for VL

Answer 1

Deterrence and Compensatory

Question 2

General Rules for VL (EE & IC)

Answer 2

EE: ER liable if EE’s action within scope of employment
IC: ER not liable for IC’s action

Question 3

Right of Control Test (EE v. IC)

Answer 3

a. Extent to which master controls details of work
b. Distinct occupation or business
c. Customs of occupation
d. Who supplies the place and tools of work
e. Length of employment
f. Payment
g. Employer’s regular business
h. The belief of parties

Question 4

Scope of EE Employment 2 Approaches

Answer 4

1. Motivated to serve ER
2. Foreseeable - was tort an incidental risk of business

Question 5

VL for EE’s intentional tort

Answer 5

Usually no VL unless (1) EE was furthering ER’s work or (2) engaged in activity connected to work

Question 6

Examples of EE activities in the scope of employment

Answer 6

Detours, Bussard exception to coming and going, personal needs/comfort/convenience/health/welfare

Question 7

Examples of EE activities out of scope of employment

Answer 7

Frolic, coming & going

Question 8

Meaning of non-delegable duty for VL IC exception

Answer 8

holding out as an agent: repairing dangerous instrumentalities, statute requirements, inherently dangerous activities

Question 9

Exceptions to general rule for IC VL

Answer 9

(VL if): Non-delegable duty, abnormally dangerous activity, illegal activities

Question 10

VL and Collateral Risk

Answer 10

if injury/harm from IC is not a result of what makes the activity dangerous, ER not VL

Question 11

General (CL) rule for roaming animals and SL

Answer 11

Owners SL for harm by animals

Question 12

Examples of Roaming Animals

Answer 12

Barnyard animals: sheep, goat, horse, chicken

Question 13

Highway Exception to CL SL

Answer 13

Negligence (instead of SL) when animals on public roads cause damage to adjoining parcels

Question 14

SL Fencing Out

Answer 14

P Buying SL-
Proper Fence & Animals broke in: SL
No Fence: Neg

Question 15

SL Fencing In

Answer 15

D protecting from SL-
No Fence: SL
Proper Fence & Animals broke out: Neg

Question 16

2 Requirements for SL of Wild Animals

Answer 16

(1) exercised control
(2) injury related to animal’s risk

Question 17

What kind of liability applies when a wild animal “causes” an injury NOT related to its risk?

Answer 17

Negligence (ex: tripping over a tiger’s tail)

Question 18

General rule for liability of domestic animals

Answer 18

Negligence unless 2 factors met

Question 19

2 factors required for SL of domestic animals

Answer 19

(1) vicious propensity (and relation to animals harm)
(2) scientre

Question 20

Abnormally dangerous activities

Answer 20

Risk cannot be brought down even with the most careful precautions

Question 21

2d Rstmt for SL and Abnormally Dangerous Activities

Answer 21

Totality of the circumstances (unpredictable outcomes)

Question 22

SL and Abnormally Dangerous Activities - Cairns Rule

Answer 22

non-natural/uncommon use - SL

Question 23

SL and Abnormally Dangerous Activities - Blackburn Opinion

Answer 23

escapes and causes mischief = liability w/o fault

Question 24

3d Rstmt for SL and Abnormally Dangerous Activities

Answer 24

(1) creates a foreseeable & highly significant risk even with use of reasonable care
(2) Rylands- activity is not common usage

Question 25

Steps for SL

Answer 25

(1) animal or activity
(2) harm suffered w/in inherent risk
(3) proximate cause
(4) defenses

Question 26

Defenses for SL

Answer 26

Comparative fault, assumption of the risk, lack of scientre, privilege

Question 27

Misfeasance

Answer 27

Creating a risk; failure to act when a reasonable person would

Question 28

Nonfeasance

Answer 28

No legal duty to act

Question 29

General Rule for Duty to Protect

Answer 29

no duty to rescue, warn, protect, or control

Question 30

Exceptions that create an affirmative duty

Answer 30

(a) innocently or carelessly creates peril
(b) special relationship
(c) D acts & abandons
(d) D induces reliance
(e) K
(f) owner/occupier of land
(g) statute

Question 31

Acronym for exceptions that create an affirmative duty

Answer 31

I See Apples In Kites Over Skies

Question 32

Affirmative Duty - Modern View

Answer 32

If D intervenes, D must act reasonably

Question 33

Affirmative Duty - Trad View

Answer 33

If D intervenes, D cannot leave P worse off than P would have been w/out Ds intervention

Question 34

CL Landholder Duty - Trespasser

Answer 34

Undiscovered, no duty

Question 35

CL Landholder Duty - Licensee

Answer 35

Duty to warn of hidden defects D knows about

Question 36

CL Landholder Duty - Invitee

Answer 36

Must keep property reasonably safe

Question 37

CA Landholder Duty

Answer 37

No distinction of status - must keep prop reasonably safe

Question 38

NIED - direct victim meaning

Answer 38

Near miss

Question 39

NIED Special Relationships

Answer 39

Applies to Direct Victims- duty to not inflict in special relationship (ex: therapist & patient)

Question 40

NIED - bystander meaning

Answer 40

Saw someone get hurt

Question 41

NIED - Thing v. LaChusa

Answer 41

D liable when
(1) P close (blood relation or marriage) to victim
(2) P present at scene and aware
(3) P suffers distress but not hypersensitive

Question 42

NIED - Physical Impact Approach

Answer 42

Something must touch P (unfavored)

Question 43

NIED - Physical Manifestation Approach

Answer 43

Distress must be shown physically and not hypersensitive

Question 44

When does Phys Manifestation and Zone of Danger for NIED apply?

Answer 44

Both bystanders and direct victims

Question 45

NIED - Zone of Danger

Answer 45

P was at risk/close enough to D’s conduct to be in danger

Question 46

Acronym for Right of Control Test for VL - IC v. EE

Answer 46

Even Dance Centers Want Less People Right Besides