Nuisance and General Tort Considerations Flashcards
What are the elements of private nuisance?
Substantial (offensive, inconvenient, or annoying to an average person in the community) and unreasonable (severity of inflicted injury outweighs the utility of D’s conduct) interference.
What is a public nuisance?
An unreasonable interference with community health, safety, or property rights.
What are the remedies for nuisance?
P will usually be awarded damages.
Injunctive relief may be available if damages are insufficient or inadequate.
What are the defenses to nuisance?
- Zoning (my land is zoned for the use that’s bothering P)
- Conduct of others (can’t prove it was just me)
- Contributory negligence (generally doesn’t work)
- Coming to the nuisance (generally doesn’t work)
Define respondeat superior?
An employer is liable for tortious acts committed by an employee in the scope of the employment.
Note: Minor deviations are still within scope, intentional torts are not.
When is an intentional tort within the scope of employment?
- When force is authorized by the employment (bouncer at a nightclub)
- Friction is generated by the employment (bill collector)
- Employee believes he is furthering the business of the employer (security guard at a store)
When is an employer liable for their own negligence?
When they negligently select and / or supervise an employee (applies to independent contractor’s as well)
When is a principle held liable for the tortious act of an independent contractor?
- When the independent contractor is engaged in an inherently dangerous activity
- The duty is non-delegable because of public policy
When, on the MBE, is the owner of a car liable for the tortious activity of another driving his car?
- Family Car Doctrine - liable if driver is family member with permission
- Negligent Entrustment - liable for own negligence in entrusting the car to a driver
When, on the NY test, is the owner of a car liable for the tortious activity of another driving his car?
Permissive Use - Liable if owner gave permission to tortious driver
On the MBE, is a parent liable for the tortious acts of a child?
No liability, but parent will be liable for their own negligence is allowing the child to do something (i.e., drive a car)
In NY, is a parent liable for the tortious acts of a child?
Yes, by statute. But recovery is limited to a moderate amount.
What is a Dramshop Act?
It creates liability for tavernkeepers in favor of injured third parties
What is joint and severable liability?
When two defendant’s proximately cause an injury, each is liable for the entire amount (unless clearly divisible)
Note: When D’s act in concert, liable for the entire amount regardless of divisibility
Note: NY has modified J&S liability for Ds who have a low % of fault (see NY practice).
What is satisfaction?
Recovery of a full payment (only one allowed)
What is a release?
D is released from further liability. Release of one D does not discharge the liability of other tortfeasors.
What are the rules regarding contribution when there are multiple defendants?
- It is not applicable in intentional torts.
- The D seeking contribution must be originally liable to P
- Majority approach: comparative contribution
Minority approach: equal shares contribution (regardless of % fault)
How does indemnity work in vicarious liability cases?
The loss is shifted from the vicariously liable D to the active tortfeasor
How does indemnity work in products liability cases?
The non-manufacturer (retailer) gets indemnity from the manufacturer
What kind of damages are sought in a loss of consortium action?
Loss of services, companionship, and sex
Who make bring a loss of consortium claim?
The uninjured spouse of the injured party
What defenses may be asserted in a loss of consortium action?
Any defense that may have been asserted against the injured party, such as assumption of risk, can be asserted against the non-injured spouse
