Rule Statements Flashcards
Vicarious Liability | Employees
An employer will be vicariously liable for the tortious actions of an employee who is acting within the scope of employment, which includes acts that the employee is employed to perform or that are intended to profit or benefit the employer.
Generally, an employer is not vicariously liable for the intentional torts of employees except:
(1) When force is inherent in the work (e.g., bouncer); and
(2) If the employer authorizes the employee to act on his behalf, and the employees position provides the opportunity to commit an intentional tort
(Detour = minor permissible, slight deviation from work [vicarious liability]
Frolic = unauthorized, substantial deviation from work [no vicarious liability])
Vicarious Liability | Independent Contractors
Employers are not vicariously liable for the tortious actions of an independent contractor. A person who hires an independant contractor is vicariously liable for certain conduct (i.e., non-delegable duties):
(1) abnormally dangerous activites;
(2) inherently dangerous activities;
(3) non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inhrently risky or that affect the public at large, such as construction work adjacent to a public highway);
(4) the duty of a storekeeper or other operator of premises open to the public to keep such premsises in a reasonably safe condition; and
(5) in a minority of jurisdictions, the duty to comply with state safety statutes.
A person who hires an independant contractor is vicariously liable for physical harm under “apparent authority” if:
(1) the services are accepted in the reasonable belief that the person or the person’s employees are rendering the services; and
(2) the independant contractor’s negligence is a factual cause of harm to one who recieves the services, and such harm is within the scope of liability
Employer/Employee = An employer has the right to control the means and methods by which an employee performs the work.
Independent contractors = An employer only have the right to control the end product of an independant contractor’s work.
Vicarious Liability | Joint Venture/Enterprise
Participants in a joint venture or enterprise will be vicariously liable for the tortious conduct of other participants if:
(1) there is an agreement, express, or implied, among the members of the group;
(2) with a common purpose to be carried out by the group; (3) with a community of pecuniary interest in that purpose among the members; and
(4) an equal right to a voice in the direction of the enterprise, which give an equal right of control
Vicarious Liability | Car Owner - Negligent Entrustment
The owner of a vehicle (or any other object that carries the potential for harm) may be liable for the negligent acts of a driver to whom the car owner knew or should have known the user’s negligent propensities
Vicarious Liability | Car Owner - Family Purpose Doctrine
Many jurisdictions, through legislation or judicial decision, attach vicarious liability to the owner of a car for the tortious conduct of a family member using the car for the benefit of the family
Vicarious Liability | Car Owner - Imputed Negligence
Minority jurisdictions apply “imputed negligence” as a form of vicarious liability if the owner is the passenger while the driver engages in tortious conduct
Vicarious Liability | Car Owner - Owner Liability Statutes
Some states have enacted legislation that attaches vicarious liability to a car owner for the tortious conduct of anyone driving the car with permission
Strict liabiity | Wild animals
An owner or possessor of a wild animal will be strictly liable for injuries caused by a wild animal’s dangerous propensities, no matter how much precaution is taken on the part of the owner of possessor to prevent injury. The defendant need not own the animal but must be in possession and control of it
“Wild animals” are those which are not traditionally and by custom devoted to the service of humankind in the place where it is being kept.
Strict liabiity | Domestic Animals
An owner or possesor is not strictly liable for injuries caused by domestic animals unless they have knowledge of that animal’s dangerous propensities; “every dog gets one free bite” and “every horse gets one free kick.”
An owner or possessor is strictly liable for reasonably foreseeable damage done by his/her trespassing animal. The defendant need not own the animal but must be in legal possession and control of it.
Defense: a defendant is not strictly liable when the plaintiff’s injury is attributable, not to the defendant’s keeping of the animal, but to the plaintiff’s unnecessarily and voluntarily putting him/herself in a way to be hurt knowing the probable consequences of his/her act, so that he/she may fairly be deemed to have brought the injury upon him/herself
“Domestic animals” are those which are traditionally and by custom devoted to the service of humankind in the place where it is being kept.
Strict liabiity | Ultrahazardous/Abnormally Dangerous Activity
A defendant will be strictly liable for harm caused by his/her engaging in an ultrahazardous/abnormally dangerous activity.
To determine if an activity is ultrahazardous/abnormally dangerous, consider the factors:
(1) Existence of a high degree of risk of harm to the person, land, or chattels of others;
(2) Likelihood that the harm that results from it will be great; (3) Inability to eliminate the risk by the exercise of reasonable care;
(4) Extent to which the activity is not a matter of common usage;
(5) Inappropriateness of the activity to the place where it is carried on; and
(6) Extent to which its value to the community is outweighed by its dangerous attributes.
The harm sustained must be caused by the thing which makes the activity ultrahazardous. (Mother mink killing her litter was not caused by the things which make blasting ultrahazardous). Strict liability does not apply where the injury results from an act of God which the owner had no reason to anticipate. (Hydro plant owners did not anticipate hurricane damaging hydro plant which subsequently floods nearby properties)
Public Nuisance
A public nuisance is an unreasonable interference with a right common to the general public.
Factors used to determine whether interference with a public right is unreasonable:
(1) Whether the conduct involves a substantial interference with a public health, safety, peace, comfort, or convenience;
(2) The degree to which the utility of the conduct outweighs the interference;
(3) Whether the conduct is proscribed by statute, ordinance, or regulation; and
(4) Whether the conduct is of a continuing or has produced long-lasting effects.
A plaintiff can only recover if they suffer an injury that is different in kind from that suffered by the general public while engaging in the right common to the general public that is being affected by the defendant’s conduct
Private Nuisance
A private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of land which is substantial and unreasonable.
Substantial intereference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of their own property.
To be unreasonable, the severity of the inflicted injury must outweigh the utlity of the defendant’s conduct. A vendee of land cannot sue a vendor of that land for a nuisance created on the land when the vendor was in possession of the land
Nuisance Remedy Considerations
Where there is a large disparity between the harm caused by the nuisance and the economic effect of an injunction to abate the nuisance, and where the nuisance is permanent and unabateable, the court has the equitable power to substitute permanent damages for both past and future harm in the place of an injunction.
A residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged by moving to that neighborhood. However, where the public interest is at state (. . . like the development of large-scale housing), an injunction may be issued conditioned on the housing developer paying the costs of abatement (cease operation or more operation).
Indemnity in these situations is limited to cases where a developer has foreseeably brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief
Products Liability Theories
When a plaintiff files a product liability case, it is usually based on one or several claims on which to base their action:
(1) Intent;
(2) Negligence (MacPherson v. Buick Motor Co.);
(3) Breach of warranty; and
(4) Strict products liability
Products Liability | Intent
A defendant will be liable to anyone injured by an unsafe product if the defendant intended the harmful consequences or knew that they were substantially certain to occur. Liability based on an intentional torts is very uncommon.
If the requisite intent on the part of the defendant is established, the intentional tort on which the cause of action most likely will be based is battery
Products Liability | Negligence - Duty
The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff (i.e., a purchaser, user, or bystander) under the Cardozo/majority rule and to anyone under the Andrews/minority rule
Remember, privity of contract is no longer required
Products Liability | Negligence - Breach
Failure to exercise reasonable care in the inspection or sale of a product.
Plaintiff must prove that the defect exists, and that the defendant’s lack of reasonable care led to the plaintiff’s harm (i.e., had the D exercised reasonable care in inspection or sale of the product, the defect would have been discovered, and the P would not have been harmed).
P may also implicate res ipsa loquitur if the defect could not have occurred without the manufacturer, distributor, retailer, or selller’s negligence
Products Liability | Negligence - Causation
P must still prove actual and proximate causation
Products Liability | Negligence - Damages
P is entitled to recover damages from personal or property damage.
A claim for purely economic loss is generally not allowed. Nominal damages are not allowed
Product Liability | Breach of Express Warranty
For purposes of a products liability claim, an express warranty is a guarantee - an affirmation of fact or a promise - made by a defendant in the “chain of distribution” (manufacturer, wholesaler, retailer, dealer, etc.) regarding the product that is part of the basis of a bargain (a key factor is whether the defect or characteristic of the item which was in breach of the warranty was readily discoverable to the plaintiff when the plaintiff took the item).
A seller is liable for any breach of that warranty, regardless of fault. Damages for personal injury or property damage are recoverable
Product Liability | Breach of Implied Warranty of Merchantability
When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable
“Merchantable” means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used
Product Liability | Breach of Implied Warranty of Fitness for a Particular Purpose
An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know:
(1) the particular purpose for which the goods are required; and
(2) that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods
Product Liability | Breach of Implied Warranty - Effect of Disclaimer
Disclaimers of liability for breach of implied warranties must be specific and are very strictly construed.
Contractual limitations (like those attempted in Henningsen v. Bloomfield Motors, Inc.) on personal injury damages resulting from a breach of implied warranty are per se unconscionable
Manufacturing Defect
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. Products with manufacturing defects are defective because of some characteristic that is different that others in a line of that product, usually as the result of faulty workmanship or defective materials.
The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications
Design Defect
Depending on the jurisdiction, courts apply either the consumer-expectation test or the risk utility test to determine whether a design defect exists. Many jurisdictions use various hyrbids of the two tests, and some states allow the plaintiff to prove a design defect under either test.
Consumer Expectation Test: does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him/her?
Risk-utility test: Does the risk posed by the product outweigh its benefits? In a majority of jurisdictions that use this test, the plaintiff must prove that a reasonable alternative design was available to the defendant, and the failure to use that design has rendered the product not reasonably safe; the alternative design must be economically feasible
Failure to Warn Defect
A failure to warn defect exists if:
(1) there were foreseeable risks of harm, not obvious to an ordinary user;
(2) the defendant had actual or constructive knowledge of those risks (the defendant is allowed to introduce evidence that the risk was either unknown or unknowable);
(3) the risks would have been reduced or avoided by providing reasonable instructions or warnings; and
(4) the defendant failed to provide adequate warnings or instructions to reduce or avoid those risks
