Rule Statements Upload 3.21 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. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. (Detour = minor permissible, slight deviation from work [vicarious liability] Frolic = unauthorized, substantial deviation from work [no vicarious liability]) 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
Vicarious Liability | Independent Contractors
Employers are not vicariously liable for the tortious actions of an independent contractor. Employer/Employee = An amployer 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. 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’s negligence is a factual cause of harm to one who recieves the services, and such harm is within the scope of liability
Vicarious Liability | Joint Venture/Enterprise
Participants in a joint venture or enterprise will be vicariously liable for the tortious conduct of other particiapants 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 neglgient 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. “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. The defendant need not own the animal but must be in possession and control of it
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.” “Domestic animals” are those which are traditionally and by custom devoted to the service of humankind in the place where it is being kept. 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
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. The following factors may be 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; (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/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: Do 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
Defamation Elements
A plaintiff in defamation case must prove: (1) defamatory statement; (2) of or concerning the plaintiff; (3) published to a third party; (4) falsity of the defamatory lanugage; (5) fault on the part of the defendant; and (6) damage to the plaintiff’s reputation
Defamation Defenses
The defenses to defamation are (1) Truth; (2) Consent; and (3) privileges
Element 1: Defamatory statement
A defamatory statement is a statement of fact that tends to adversely affect one’s reputation. A statement of opinion by itself is generally not actionable. A statement of opinion may be actionable if it appears to be based on specific facts, and those facts are false and defamatory
Libel
A defamatory statement in writing
Slander
A spoken defamatory statement
Element 2: Of or Concerning the Plaintiff
the plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referrred to the plaintiff. If the defamatory statement is about a group of people, the plaintiff must be specifically identifiable as a member of the group within the statement to be actionable
Element 3: Publication to the Third Party
Publication means communication to at least one other person who understands it. Intent to defame is not need, only intent to publish. Each repetition is a separate publication; however, for magazines, newspapers, books, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication. An interactive internet service provider is not treated as a publisher when a user of its service posts defamatory content; to be an “information content provider,” thus subjecting it to liability, the interest service must create, develop, or, at a minimum, manipulate the content
Element 4: Falsity of the Statement
Common law presumed that defamatory statements are false. Therefore, at common law, the burden was on the defendant to prove truth as a defense. Modernly, a majority of jurisdictions require that the plaintiff prove that the statement was false (slight inaccuracies are insufficient)
Element 5: Fault on the Defendant’s Part
A majority of jurisdictions require a showing of fault on the part of the defendant. There are additional constitutional limitations (i.e. degree of fault limitations) depending on the status of the plaintiff. (public figure or official; private person, matter of public concern; private person, matter of private concern)
Public Figure or Official
Under NY Times v. Sullivan, actual malice must be proven if the plaintiff is a public figure or official. A public figure is one who has interjected him/herself in matters of public controversy such that they have gained general fame or notoriety in the community. General fame in a specialized professional community is insufficient. Actual malice can be proven by (1) knowledge of falsity; or (2) reckless disregard for the truth of the statement. Mere failure to verify the accuracy of the information is insufficient to prove reckless disregard for the truth. Reckless disregard for the truth means that the defendant seriously entertained doubts as the accuracy of the information
Private Person, Matter of Public Concern
Under Gertz v. Welch, when the plaintiff is a private person, only negligence regarding the falsity must be proved if the statement invovles a matter of public concern. If the defendant is negligent, only actual injury is recoverable. However, if actual malice is proven, presumed and punitive damages are allowed
Private Person, Matter of Private Concern
A state may permit recovery of presumed and punitive damages absent a showing of actual malice when the defamatory statements do not involve matters of public concern
Element 6: Damage to Plaintiff’s Reputation, Libel
Because of the permanency of a libelous publication-one which is written, printed, or otherwise recorded-common law presumed general damages. The plaintiff only needed to invite the jury to award damages that it believed flowed from the defendant’s defamatory communication. Subject to the modern constitutionally imposed limits on damages recoverable in a defamation action, the libel plaintiff now needs to prove general damages- those damages that compensate the plaintiff for harm to the plaintiff’s reputation
Element 6: Damage to Plaintiff’s Reputation, Slander
Where the defamatory statement is slander-spoken or in gesture-the plaintiff needs to prove “special damages,” that is, ascertainable damages involving economic loss. Under the doctrine of slander per se, a plaintiff alleging slander need not prove special damages if the statement fits into one of four categories: (1) That the plaintiff committed a crime. Many jurisdictions require the crime to be one of moral turpitude or one which subjects the plaintiff to imprisonment; (2) Conduct reflecting on the plaintiff’s lack of fitness in his/her business, trade, or profession; (3) That the plaintiff has a “loathsome disease.” Traditionally, this included illnesses such as leprosy or a sexually transmitted disease; and (4) traditionally, that a woman was “unchaste,” or modernly, general sexual misconduct
Defamation Defense: Truth
At common law, the burden of proving truth rested with the defendant as a defense. Modern law requires the plaintiff prove that the statement was false. Notwithstanding the modern standard of placing the burden of proving falsity with the plaintiff, a defendant may still want to introduce evidence that the statements were true. Slight inaccuracies will not suffice as an untruthful statement
Defamation Defense: Consent
Consent by the plaintiff is a defense, but as with other torts, a defendant’s defamatory statement cannot exceed the scope of the plaintiff’s consent
Defenses: Absolute Privileges
Statements made under the following circumstances are shielded by absolute privilege: (1) in the course of judicial proceedings by the participants to those proceedings; (2) in the course of legislative proceedings by the participants to those proceedings; (3) in the course of legislative duties by a legislator; (4) in the course of federal or executive duties by federal or executive employees; (5) between spouses concerning a third-person; and (6) required publications by a political candidate that a station must carry and may not censor
Defenses: Qualified/Conditional Privileges
Statements made under the following circumstances are shielded by a qualified/conditional privilege: (1) In in the interest of the publisher defendant, such as defending his reputation; (2) In the interest of the recipient of the statement or a third-party (such as between a prior employee to a prospective employer about the employment of an employee); and (3) when broadly, there is a public interest in encouraging candor. The privilege may be lost if: (1) it is made outside the scope of the privilege; or (2) when made with actual malice
