Nuisance, Vicarious Liability, and Other Misc

Question 1

Nuisance

Answer 1

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

Question 2

Private nuisance

Answer 2

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

Question 3

Types of cases - nuisance

Answer 3

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

Question 4

Substantial interference - nuisance

Answer 4

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

Question 5

Unreasonable interference - nuisance

Answer 5

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

Question 6

Nuisance vs. trespass

Answer 6

In a trespass, there is an interference with the landowner’s exclusive possession

In private nuisance, interference with use or enjoyment

Question 7

Public nuisance

Answer 7

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

Question 8

Vicarious liability generally

Answer 8

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

Question 9

Employer-employee - vicarious liability

Answer 9

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

Question 10

Scope of employment - frolic or detour

Answer 10

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

Question 11

Scope of employment - intentional torts

Answer 11

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)

Question 12

Employers liable for own negligence

Answer 12

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

Question 13

Independent contractors and vicarious liability

Answer 13

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

Question 14

Exception to independent contractor and vicarious liability

Answer 14

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

Question 15

Partners and Joint venturers - vicarious liability

Answer 15

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

Question 16

Automobile owner for driver - vicarious liability

Answer 16

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

Question 17

Vicarious liability - parent and child

Answer 17

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

Question 18

Dramshop Acts

Answer 18

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

Question 19

Joint and several liability

Answer 19

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

Question 20

Joint and several liability - acting in concert

Answer 20

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

Question 21

Statutory limitations on joint and several liability

Answer 21

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

Question 22

Satisfaction and release - damages

Answer 22

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

Question 23

Contribution

Answer 23

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

Question 24

Equal shares - contribution

Answer 24

In a minority of states, apportionment is in equal shares regardless of degrees of fault

Question 25

Comparative contribution

Answer 25

Most states have a comparative contribution system

Contribution is imposed in proportion to the relative fault of the various defendants

Question 26

Indemnification

Answer 26

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

Question 27

Loss of consortium - between spouses

Answer 27

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

Question 28

Loss of consortium - parent-child

Answer 28

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

Question 29

Property owner’s duties to adjacent premiss

Answer 29

A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions

Question 30

Business duty to customers

Answer 30

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