special negligence topics Flashcards
what are the elements of negligent infliction of emotional distress
- the plaintiff must either view the accident or injury-causing event or come upon the accident soon thereafter
- direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that a person in plaintiff’s position would suffer serious mental anguish from the experience
- the emotional distress sustained must be serious and reasonably foreseeable to allow recovery
- only certain classes are entitled to recover
- viewing the scene must be the cause of emotional distress
vicarious liability
what are the general requirements
- employment relationship
- course and scope
- underlying fault
vicarious liability
when is an employee outside the course and scope of their employment
frolic and detour
vicarious liability
when are intentional torts committed by the employee considered within the course and scope of employment
if the act is primarily rooted in employment and reasonably incident to employment duties or
when the conduct is so closely related in time, place, and causation to the employment duties that it constitutes a risk of harm attributable to the employer’s business
vicarious liability
how is underlying fault usually found
through negligence
vicarious liability
what type of employees are included within the employment relationship
- payroll
- borrowed employee
vicarious liability
what are the factors to determine whether an employee is a “borrowed employee”
- right of control
- actual exercise of control by the borrowing employer
- relinquishment of control by the general employer
- whether the borrowed employee is doing the work for the borrowing employer
vicarious liability
what is the control test for the employment relationship
- look for close economic relationship and close control to be deemed an employee
- integral part of the employer’s business and must submit to the control of his physical conduct as well as his time
vicarious liability
what is the rule as to independent contractors for the employment relationship
an employer is not vicariously liable for the torts of an independent contractor – consider whether the principal has the right to exercise control
vicarious liability
what are the factors for determining whether someone qualifies as an independent contractor
- whether there’s a contract between the parties
- whether the contractor chooses the means for accomplishing the task
- whether the object of the contract is a particular piece of work for a set price
slip and fall
who does the slip and fall statute apply to
merchants, for damages due to a fall on the merchant’s premises
slip and fall
how is a merchant defined
includes those who sell goods, foods, wares, or merchandise at a fixed place of business
slip and fall
who else is included as a merchant
can also include an “inkeeper” with respect to areas or aspects of premises which are similar to those of a merchant
slip and fall
what are the specific slip and fall elements that the plaintiff must establish
- condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable
- merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence
- merchant failed to exercise reasonable care
slip and fall
in addition to the 3 requirements that the plaintiff must establish, what are the other elements
- duty –duty of the merchant to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition
- breach –failure to exercise reasonable care in keeping the premises in a safe condition
- cause in fact (substantial factor)
- damages
