Strict Liability

Question 1

Traditional Test for vicarious liability (Liability Without Fault)

Answer 1

Independent contractor = no liability
Employee = vicarious liability

Does the defendant have the RIGHT TO CONTROL the manner in which the worker performs their tasks?
◦ Note: it is the right to control, not the actual exercise of control

Question 2

California ABC Test for Vicarious Liability (Liability Without Fault)

Answer 2

Presumption that a worker who performs services for a hirer is an employee UNLESS employer can show…

	‣ (A) that the worker is FREE FROM CONTROL and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and 
	‣ (B) that the worker performs work that is OUTSIDE the usual COURSE OF the hiring entity's BUSINESS; and 
	‣ (C) that the worker is customarily engaged in an INDEPENDENTLY ESTABLISHED TRADE, occupation, or business of the same nature as the work performed for the hiring entity.

Question 3

Scope of Employment Test (Vicarious liability stemming from negligent conduct)

Answer 3

Employer is vicariously liable if negligence happens within scope of worker’s employment:

1) Employee’s conduct must be the general kind the employee is HIRED TO PERFORM
2) Employee’s conduct must occur substantially within the HOURS and ordinary SPATIAL BOUNDARIES of the employment
3) Employee’s conduct must be MOTIVATED, at least in part, by the purpose of SERVING the EMPLOYER’S INTEREST

Question 4

Vicarious Liability stemming from intentional misconduct

Answer 4

Workplace disputes stemming from employment-duties are within the scope of employment and the employer is vicariously liable

Question 5

Non-delegable Duties

Answer 5

1) AFFIRMATIVE DUTIES that are IMPOSED on the employer by statute, contract, franchise, character, or common law
2) Duties imposed on the employer that arise out of the work itself because its performance creates dangers to others i.e. INHERENTLY DANGEROUS work

Takeaway: Employers are liable for the actions of an independent contractor when the work involves a non-delegable duty (work that involves an inherent/special risk, “laden with public policy concerns”)

Question 6

Strict Liability for Abnormally Dangerous Activities

Answer 6

Blackburn Standard (Mischief Standard)
	 "The person who, for his own purposes, brings on his land and collects and keeps there anything LIKELY TO DO MISCHIEF if it escapes, must keep it in at his peril and, if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape."

Cairns & Blackburn Standard (Non-Natural Use Standard)
Upholds Blackburn standard but also adds “Non-natural use”
Two Conceptions
Introducing onto the land something that wasn’t already there in its natural state (Rylands v. Fletcher), or
Doing something that is not common, customary use of the property

Question 7

Restatement Third Test: Is it abnormally dangerous? (so strict liability applies)

Answer 7

Restatement Third Test:

(1) the activity creates a FORESEEABLE and highly significant RISK OF physical HARM even when reasonable care is exercised by all actors; and
(2) the activity is NOT one of COMMON usage

Question 8

Strict Liability for Animals

Answer 8

◦ Strict liability for wild animal (even if you have domesticated it)
◦ Strict liability for abnormally dangerous animals (ram was not abnormally dangerous for its species)
◦ No strict liability for domestic animals unless 1) animal is vicious, and 2) owner knows

Question 9

Exceptions (for SL w/ animals)

Answer 9

• Restatement (Third) of Torts § 21: An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion.
• First bite rule, OR
• Strict liability for dog bites
• Fence out / fence in states

Question 10

Causation for Abnormally Dangerous Activities

Answer 10

“One who carries on an ultra hazardous activity is liable to another whose person, land, or chattels the actor should recognize as LIKELY TO BE HARMED by the unpreventable miscarriage of the activity for harm resulting thereto FROM THAT WHICH MAKES THE ACTIVITY ULTRA HAZARDOUS, although the utmost care is exercised to prevent the harm”

(Ex. blasts making mink kill babies = outside scope of harm, thieves blow up explosive-storage facility = Explosion was type of harm that made the activity abnormally dangerous)

Question 11

Strict Liability Defenses

Answer 11

Comparative/contributory fault: R3d §25- Plaintiff’s fault reduces the plaintiff’s recovery in accordance with the share of comparative responsibility assigned to the plaintiff

Animal attack was provoked