Proving Negligence; Vicarious Liability

Question 1

Res Ipsa Loquitor

Answer 1

The thing speaks for itself

• • the accident alone is prima facie evidence of negligence
• -Permits but does NOT compel an inference of negligence; provides P w/ common-sense inference of negligence where direct proof of negligence is wanting.
• • does not change standard of care BUT does change what the jury does

Question 2

3 Conditions of Res Ipsa Loquitor

Answer 2

A) Accident must be the type that doesn’t occur without negligence
B) Must be caused by instrumentality within control of D
C) Must not have been due to voluntary action or contribution by P

Question 3

Byrne v. Boadle

Answer 3

Establishes Res Ipsa Loquitor

Question 4

McDougald v. Perry

Answer 4

Establishes the 3 conditions of RIL

– must prove 3 conditions by preponderance of the evidence

Question 5

Ybarra v. Spangard

Answer 5

Very rare application of RIL to medicine

–establishes the compelling of evidence from D’s to establish a clearer understanding of the circumstances

Question 6

Inference / Presumption

Answer 6

• Inference - if you can infer, find negligent
• Presumption - if the defendant offers no plausible rebutting evidence, the plaintiff is entitled to judgment as a matter of law on liability. If defendant offers such evidence, the jury is to be informed that the plaintiff still bears the burden of persuasion that the defendant was negligent

Question 7

Restatement §17

Answer 7

Factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors of which the defendant is a relevant member

Question 8

Inference Standard of RIL

Answer 8

Jury hears, jury can infer based on evidence presented, permitted (not required) to find one way or another

Question 9

Shifting of Burden of Persuasion

Answer 9

If jury finds elements are met; burden of persuasion is on D – must disprove their negligence

Question 10

Shifting of Burden of Production

Answer 10

• *If jury finds elements are met; the D has to come forward with something to prove their point (ex. I checked the tire… I tried) OR they lose
• *If D comes with affirmative defense or failure to proof, then jury can decide N or not N.

Question 11

Vicarious Liability

Answer 11

when one person is held liable for the negligence of another

Question 12

Respondeat Superior

Answer 12

employers are vicariously liable for torts committed within the scope of employment

Question 13

Birkner Criteria/Test (factors) “or”

Answer 13

1) Conduct was the kind the employee was hired to perform
2) Within the hours and spatial boundaries of work
2) Actions performed in serving the employer’s interest

Question 14

Principal Agent Liability

Answer 14

-Similar to Respondeat Superior; btwn principal and agent (independant agent)

Question 15

Apparent Authority

Answer 15

Determine whether principal created the risk and created the reliance of the third party

1. Principal created the appearance of apparent authority AND;
   Third party relied on apparent authority and incurred a change/harm
   ** Exists only where the principal creates the appearance of agency relationship

Question 16

Christensen v. Swenson

Answer 16

Used the Birkner Factors of Respondeat Superior to hold that summary judgment could NOT be sustained IF jury’s minds could differ on the Birkner factors

Question 17

Restatement 7.07(2)

Answer 17

• Employee acts within scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control
• *NOT within scope of employment when it occurs within independent course of conduct not intended to serve any purpose of the employer

Question 18

Justification of Respondeat Superior

Answer 18

*Compensation
*Risk Spreading: Indiv. might not be able to cover expenses;
*Increased Supervision: Employers will hire better or implement better policies
*Inherent Risk in Enterprise - The business has inherent risk - not solely the individual
*How is this different from negligent hiring?
Employee does something stupid BUT we look at negligence of employer in hiring them; focuses on employer instead of employee

Question 19

Restatement 7.07(A) (F)

Answer 19

• (a)Does hirer control the actions of the employee?

- (f)identifies other considerations relevant to determining the status of one hired to perform a job

Question 20

Roessler v. Novak

Answer 20

Used the elements of apparent agency to determine that the hospital was vicariously liable for the actions of the radiologist due to the apparent agency presented by the hospital

Question 21

Restatement 57

Answer 21

an actor that hires an independent contractor is not subject to vicarious liability for caused by the tortious conduct of the contractor

Question 22

Restatement 65

Answer 22

an actor who hires an independent contract to perform services is subject to vicarious liability for physical harm if - services are accepted in the reasonable belief that the actor or the actor’s employees are rendering the services - AND - the independent contractor’s negligence if a factual cause of harm to one who receives the services and such harm is within the scope of liability

Question 23

Justification of Respondeat Superior

Answer 23

*Compensation
*Risk Spreading: Indiv. might not be able to cover expenses;
*Increased Supervision: Employers will hire better or implement better policies
*Inherent Risk in Enterprise - The business has inherent risk - not solely the individual
*How is this different from negligent hiring?
Employee does something stupid BUT we look at negligence of employer in hiring them; focuses on employer instead of employee

Question 24

Elements of Apparent Agency

Answer 24

1) Representation by principal
2) A reliance on that representation by a third party
3) a change in position by the third party in reliance on the representation