Miscellaneous Topics

Question 1

Malicious Prosecution

Answer 1

Is the institution of criminal proceedings by a D, done for an improper purpose and without probable cause, that terminate favorably for the P (P is not convicted) and yet still causes the P damages.

Question 2

Types of Acts that Fall Under Malicious Prosecution

Answer 2

Include acts that result in the commencement of criminal prosecution, including:

• Persuading a prosecutor to bring charges against a P
• Signing an affidavit for a warrant
• Giving false information to the authorities against a P with knowledge of its falsity

Question 3

Malicious Prosecution: Improper Purpose

Answer 3

The Ds act must be for an improper purpose (can’t be to bring a guilty person to justice). But if there is no PC there is a presumption that purpose was improper.

Question 4

Malicious Prosecution: When a D Lacks PC

Answer 4

• When a reasonable person possessing the same facts as the D would not have believed that the P was guilty of the charged offense.
• When the D did not actually believe that the P was guilty

Question 5

Malicious Prosecution: Termination in Favor for P

Answer 5

The criminal prosecution must have terminated in a fashion indicating that the P was innocent of the charges.

Question 6

Malicious Prosecution: Privileged Parties

Answer 6

• Judges and prosecutors are absolutely privileged as to malicious prosecution
• law enforcement officers have qualified privilege (will not be protected if the particular conduct complained of consisted of acts outside the scope of the officer’s official duties or authority)

Question 7

Malicious Prosecution: True Guilt

Answer 7

A D may prevail in a malicious prosecution action by a P if the D can establish by a preponderance of the evidence that the P was actually guilty of the crime for which the P was prosecuted.

Question 8

Malicious Prosecution Damages

Answer 8

Include:

• the harm to reputation resulting from the accusation brought
• the emotional distress resulting from the bringing of the proceedings

Question 9

Vicarious Liability

Answer 9

Liability imposed on a defendant because of his relationship with the actual wrongdoer that caused the Ps injury. Includes:

• Respondeat superior
• Joint enterprise
• Negligent entrustment
• Owner of Auto or Driver
• Parent-Child

Question 10

Respondeat Superior

Answer 10

An employer is liable for injuries caused by the negligence or SL of an employee if the tortious act occurred within the scope of the employment.

Question 11

Respondeat Superior: Scope of Employment

Answer 11

• An act that is so closely connected with what the employee was hired to do and reasonably incidental to it that that they may be regarded as methods, even though improper, of carrying out the objectives of the employment.
• Employers are liable for detours (small deviation from employer’s directions) but not frolics (major deviations). The more minor the deviation, the more likely it will be a detour.

Question 12

Respondeat Superior: Intentional Torts By Employees

Answer 12

Intentional torts committed by an employee are generally not given respondeat superior effect, even if committed during working hours. But if an employee commits the tort to further an employer’s purpose, it might fall within the scope of employment.

Question 13

Independent Contractors

Answer 13

A D is generally not liable for torts committed by an independent contractor (because D has no right to control) except:

• where the contractor undertakes a duty the law does not permit to be delegated to another and
• a contractor engages in inherently dangerous activities (high degree of risk)

Question 14

Independent Contractors: Commercial Enterprises

Answer 14

In most jurisdictions, the owner of a commercial enterprise open to business invitees cannot delegate responsibility for the maintenance of the public premises to an independent contractor.

Question 15

Joint Enterprise

Answer 15

Partners and joint venturers are vicariously liable for each other’s torts if those torts were committed in the course and scope of the partnership or joint venture.

Question 16

Joint Enterprise: What Is a Partnership?

Answer 16

A partnership is a legal relationship arising from an agreement between two or more persons to operate business for profit.

Question 17

Joint Enterprise: What is a Joint Venture?

Answer 17

When two or more people engage in concerted activity for a common business purpose and each person has a mutual right to control the activity (e.g shared-expense auto trip).

Question 18

Negligent Entrustment

Answer 18

When a D negligently permits a third party to use a thing or engage in an activity.

Question 19

Elements of Negligent Entrustment

Answer 19

P must prove that:

• the entrustee was incompetent, unfit, inexperienced, or reckless
• the entrustor knew, should have known, or had reason to know of the entrustee’s condition or proclivities
• there was an entrustment (express or implied) of the chattel
• the entrustment created an appreciable risk of harm to others; and
• P suffered harm

Question 20

Owner of Auto or Driver

Answer 20

An owner of a motor vehicle is liable for its negligent operation by any person granted permission to use or operate it.

Question 21

Family-Purpose Doctrine

Answer 21

The driver of a family car, in pursuit of recreation or pleasure, is considered to be engaged in the owner’s business and is viewed as either an agent or servant of the owner.

Question 22

Elements of the Family Purpose Doctrine

Answer 22

P must show that:

• The D owned or had an interest in or control over the vehicle
• The D made the vehicle available for family use
• The driver was a member of the Ds immediate household at the time of the collision; and
• The driver drove the vehicle with the Ds permission

Question 23

Parent-Child

Answer 23

A paret is normally not vicariously liable for a tort committed by his child. Although a few courts have imposed vicarious liability when there is the appearance of a principal-agent relationship (e.g. running an errand for parent).

Question 24

Joint and Several Liability

Answer 24

Where two or more defendants acting in concert injure the P or where two or more Ds acting independently injure P and resulting damages cannot be allocated –> all of the Ds are liable for the entirety of Ps injury.

Question 25

Joint and Several Liability: Contribution

Answer 25

• Most jurisdictions have by statute permitted one of several Ds responsible for negligently injuring a P to compel the others to contribute an equal share toward any judgment satisfied by the P against one of them.
• Under a comparative negligence system, the amount payable by each D is equal to the share of the Ps injuries for which the D is responsible.

Question 26

Joint and Several Liability: Indemnity

Answer 26

Where one D is only vicariously liable for the tort of another directly liable D, the first D may recover the entire amount of any damages paid to P from second D, who was actually responsible.

-A D may also seek indemnity from a D who subsequently injures a p and aggravates the injuries caused by the first D.

Question 27

Satisfaction

Answer 27

When more than one D is liable for a Ps injuries, but the P recovers fully from one D. The P may not seek further recovery from any other D. The D against whom satisfaction was had may seek contribution or indemnity from the other Ds.

Question 28

Survival Statutes

Answer 28

State that the death of a V or tortfeasor no longer abates a tort action and a claim can be brought by estate of decedent.

Question 29

Wrongful Death Statutes

Answer 29

All states provide an action by which either heirs of a deceased V or personal rep of a Vs estate may bring action for wrongful death for their own losses resulting from Vs death (e.g. wages the V might have earned over their lifetime, damages such as the Vs medical expenses).

Question 30

Loss of Consortium

Answer 30

Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc.