Nuisance, Vicarious Liability, and Other Misc Flashcards
Nuisance
Interference with use/enjoyment of property
- substantial inference
- needs to be a substantial, unreasonable interference
Invasion of property rights by tortious conduct
- intent or negligently
- awareness that its occurring, even if purpose is not to make owner miserable
Private and public nuisance
MBE will often flag correct choice with a key term from the definition of nuisance - substantial or unreasonable interference
Private nuisance
Substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession
Types of cases - nuisance
Inconsistent land use cases - deal with adjacent property owners who just shouldn’t be adjacent
Spite cases - neighbors causing nuisances out of spit
Gross inconsideration cases - neighbor just keeps acting inconsiderately
Substantial interference - nuisance
Substantial interference is offensive, inconvenient, or annoying to the average person in the community
Not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of their property
Unreasonable interference - nuisance
To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant’s conduct
Balance interests
- every person is entitled to use their own land in a reasonable way
- considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant
Nuisance vs. trespass
In a trespass, there is an interference with the landowner’s exclusive possession
In private nuisance, interference with use or enjoyment
Public nuisance
Act that unreasonably interferes with the health, safety, or property rights of the community
- use building for criminal activities
Recovery by private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large
Vicarious liability generally
Liability that is derivatively imposed
One person (active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act
- always based on a relationship between active party and passive party
Employer-employee - vicarious liability
An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship
Doctrine of respondent superior
Scope of employment - frolic or detour
Frolic or detour - rule on departure from work
- if minor departure from work, mere detour and still liable
- but if major departure from work, frolic of own and not within employment
If the deviation in time or geographic area is substantial
Scope of employment - intentional torts
Usually held that intentional tortious conduct by employees is not within the scope
Unless
- the employee is furthering the business of the employer (removing customers from premises because rowdy)
- force is authorized in the employment (bouncer)
- friction is generated by the employment (bill collector)
Employers liable for own negligence
Employers may be liable for their own negligence by negligently selecting or supervising their employees
- including selecting and supervising independent contractors
This is not vicarious liability
Independent contractors and vicarious liability
Generally, hiring party will not be vicariously liable for the torts conducted by the independent contractor when hiring party does not control the manner and method in which the independent contractor performs the job
Public policy exceptions
Exception to independent contractor and vicarious liability
Business owner can be held liable if independent contractor working on business premises hires customer
Duty is non delegable - duty of business to keep its premises safe for customers
Principal will be vicariously liable for tortious acts of independent contractor if independent contractor is engaged in inherently dangerous activities
Partners and Joint venturers - vicarious liability
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture
Automobile owner for driver - vicarious liability
General rule is that a car owner is not vicariously liable for the tortious conduct of another person driving their car
Some jurisdictions have exceptions
- family car doctrine
- permissive use
- liability for own negligence (but not vicious liability)
- driver acting as agent for owner
Vicarious liability - parent and child
A parent is not vicariously liable for the tortious conduct of their child at common law
But most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount
Dramshop Acts
At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication
Dramshop acts usually create a cause of action in favor of any third person injured by the intoxicated patron
- several courts have imposed liability on tavern keepers even in the absence of an act, but based on ordinary negligence
Joint and several liability
Traditional common law rule - when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable
- plaintiff can recover full damages from any defendant pl chooses
If injury is divisible, each defendant is liable only for the identifiable portion
Joint and several liability - acting in concert
When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury
Even if the injury is divisible
Statutory limitations on joint and several liability
Many states have abolished joint liability in cases based on fault either
- for those defendants judged to be less at fault than the plaintiff, or
- for all defendants regarding noneconomic damages
In these cases, liability proportional to the defendant’s fault
Satisfaction and release - damages
Satisfaction: recovery of full payment is satisfaction and only one is allowed
- until satisfaction, one may proceed against all jointly liable parties
Release: in most states, a release of one tortfeasor does not discharge others unless it expressly provided for in the release agreement
Contribution
Determines how joint tortfeasors allocate between them the damages, but doesn’t affect how much the pl receives
Rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess
- apportions responsibility among those at fault
Different methods of apportionment
Contribution defendant must be originally liable to the pl
Not allowed among intentional tortfeasors
Equal shares - contribution
In a minority of states, apportionment is in equal shares regardless of degrees of fault
Comparative contribution
Most states have a comparative contribution system
Contribution is imposed in proportion to the relative fault of the various defendants
Indemnification
Involves shifting the entire loss between or among tortfeasors
- usually applies when the paying defendant is must less responsible than the nonpaying defendant or is liable only vicariously because of their relationship
Available in following circumstances
- vicious liability situations
- under strict products liability for the non-manufacturer
Loss of consortium - between spouses
Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse
Claim by spouse of injured party, derivative of injured party’s claim
- loss of household services
- loss of society/companionship
- loss of sex
Loss of consortium - parent-child
A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct
- whether intentional or negligent
But a child has no action in most states
Property owner’s duties to adjacent premiss
A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions
Business duty to customers
A business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions
And it cannot be delegated to an independent contractor
