Torts Flashcards
Intentional Torts
To establish a prima facie case for any intentional tort, the plaintiff must prove:
1. An act by the defendant
Act required is a volitional movement by the defendant
- Intent by the defendant
Desire to produce the legally forbidden consequence
Incapacity is not a defense. Neither is intoxication.
Transferred Intent: Defendant has intent but:
A. Same or different tort against that person; or
B. Same or different person - Causation of the result to the plaintiff
Satisfied if the defendants conduct was a substantial factor in bringing about the injury
Battery:
1. An act with intent to cause a harmful or offensive contact to the plaintiffs person
Harmful: Causes actual injury, pain, disfigurement
Offensive: It would be considered offensive to a reasonable person
2. A harmful or offensive contact directly or indirectly results.
Assault:
1. An act with intent by the defendant creating a reasonable apprehension in the plaintiff
2. Of an immediate battery
- Knowledge: For apprehension to be shown the plaintiff must have been aware of the threat from the defendants act, although the plaintiff need not be aware of the defendants identity
False Imprisonment:
1. An act with intent to confine or restrain a person to a bounded area
2. Actual confinement occurs, and
3. The plaintiff knows of or is hurt by the confinement
Intentional Infliction of Emotional Distress
1. An act by the defendant amounting to extreme and outrageous conduct
Extreme and Outrageous Conduct: Exceeds all bound of decency tolerated in a civilized society
Mere insults are not considered outrageous
Conduct that is not normally outrageous may become so if:
A. It is continuous in nature; or
B. It is committed by a certain type of defendant(Common carriers or innkeepers may be liable even for mere “gross insults”); or
C. It is directed toward a certain type of plaintiff(children, elderly, someone who is pregnant, supersensitive adults if the sensitivities are known to the defendant)
2. The plaintiff must suffer severe emotional distress
Actual damages (severe emotional distress, not nominal damages, are required)
Causation in Bystander Cases: When the defendant’s conduct is directed at a third person, and the plaintiff suffered sever emotional distress because of it, the plaintiff may recover by showing either the prima facie case of emotional distress or that
A. They were present when the injury occurred
B. The distress resulted in bodily harm or the plaintiff is a close relative of the third person; and
C. The defendant knew these facts
Intentional Torts to Property
Trespass to land: The defendant physically invades the land of another and intends to be where he is.
- Physical invasion is not an intangible force (loud music, lights, a gas, etc.—that is a nuisance)
Real property includes not only the surface but also airspace and subterranean space or a reasonable distance
Trespass claim belongs to the person with right to possess the property not necessarily the owner. Thus if you rented an apartment without permission, the tenant has a claim against you not the landlord.
No injury required: The plaintiff can recover without showing actual injury to the lan
Trespass To Chattels: Act by the defendant that interferes with the plaintiffs right of possession in a chattel
Intentional interference with the plaintiffs personal property that warrants Defendant pay damages
damages
Two Type of Interference: The interference may either be an:
1. Intermeddling: Directly damaging the chattel
2. Dispossession: Depriving the plaintiff of their lawful right of possession of the chattel
Actual damages- Not necessarily to the chattel but at least to a possessory right- are required
Intent: Mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiffs right of possession
Conversion:
1. Act by the defendant that interferes with the plaintiffs right of possession in a chattel
2. Interference serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value
Intent: Mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiffs right of possession
Acts of conversion: Theft, wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel
Seriousness required: The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.
Remedies: The plaintiff may recover damages(fair market value at the time of conversion) or possession(replevin)
Defenses To Intentional Torts
Consent: The plaintiffs consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.
Express Consent: The defendant is not liable if the plaintiff expressly consents to the defendants conduct
Exceptions: There are 3 exception to express consent:
1. Mistake will undo express consent if the defendant knew of and took advantage of the mistake;
2. Consent induced by fraud will be invalidated if it goes to an essential element, but not a collateral matter
3. Consent obtained by duress will be invalidated unless the duress is only threats of future actions or future economic deprivation
Implied Consent: Implied consent is that which a reasonable person would infer from custom and usage or the Plaintiff’s conduct(physical sports, ordinary incidental contact)
Body Language Consent: Defendants reasonable interpretation of the plaintiffs objective conduct and the surrounding circumstances
Consent implied by law arises when action is necessary to save a persons life or some other important interest in person or property
Exceeding Scope of Consent: If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.
Self-Defense: When a person:
1. Reasonably believes they are being or are about to be attacked,
2. They may use such force as is reasonably necessary to protect against the injury
Initial Aggressor: Self defense is not available to the initial aggressor unless the other party responds to the aggressors non-deadly force by using deadly force.
Third Parties: Self-defense may extend to third-party injuries(caused while the act was defending themselves). An actor might be liable to a third person if they deliberately injured the third person in trying to protect themselves
Mistake: A reasonable mistake as to the existence of the danger is allowed
Timing: Self-defense must be immediate, in the heat of the moment
Reasonable Defense of Others: One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves
Mistake: A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.
How much force: The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury
Defense of Property: One may use reasonable force to prevent the commission of a tort against their real or personal property
A request to desist or leave first must be made unless it clearly would be futile or dangerous.
The defense does not apply once the tort has been committed; however one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing
How much force: Reasonable force may be used. However one may not use force causing death or serious bodily injury unless the invasion of property entails a serious threat of bodily harm
Mistake: A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege(necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged
Shopkeepers Privilege: A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied:
1. There must be a reasonable belief as to the fact of theft
2. The detention must be conducted in a reasonable manner and only non-deadly force can be used
3. The detention must only be for a reasonable period of time and only for the purpose of making the investigation
Necessity:
1. Public Necessity: A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster”
2. Private Necessity: Private necessity can be a defense when the action was to prevent serious harm to a limited number of people.
Under private necessity, the actor must pay for any injury they cause(unless the act was to benefit the property owner)
Liable for compensatory damages, but not punitive or nominal damages
So entering land without asking for permission no liability, and can stay without being kicked out until emergency ends
Necessity is a defense only to property torts
Negligence
In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the defendant’s conduct was both the actual cause and the proximate cause of the plaintiff’s injuries, and the plaintiff suffered damages.”
Duty of Care
Standard of Care: All persons owe a duty to behave with the same care as a hypothetical and reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims
Reasonably Prudent Person Standard: Is an objective standard, measured against what the average person would do.
A defendants mental deficiencies and inexperience are not taken into account
Exception: Superior Skill or Knowledge: A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience. (Race car drive must act like a reasonably prudent person +use knowledge of how to handle a wipeout)
Exception: Physical Characteristics: The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if those characteristics are relevant to the claim. (Blind person should act like a reasonably prudent person who cannot see so he shouldn’t drive)
To Who Do You Owe A Duty: A duty of care is owed only to foreseeable plaintiff’s within the “zone of danger”- The class of persons who were foreseeably endangered by the defendant negligence conduct
Rescuers: A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril(danger invites rescue)
Firefighters Rule: Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs
Children:
Standard of Care: Children(5-18) are held to the standard of a child of like age, intelligence, and experience.
This is a subjective test.
Exception: A child under 5 is usually without the capacity to be negligent
Exception: Child Engaged In Adults Activity: Held to reasonably prudent person standard. Most common activity is operating a vehicle
Special Standard Of Care For Professionals
Standard of Care: A professional is required to possess the knowledge and skill of an average member of the profession in good standing
For doctors, most courts apply a national standard of care to evaluate their conduct
Empirical standard: Compare to real world not imaginary like reasonable prudent standard
Duty To Disclose Risks: A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent.
A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patients position would have withheld consent on learning of the risk
Exam Tip: On essay DO NOT WRITE “REASONABLE DOCTOR”
Affirmative Duties To Act:
General Rule: Generally, one does not have a legal duty to act.
There is no duty to rescue
1. Exception 1: Acting: One may assume a duty to act by acting
Good Samaritan Statues: Exempt doctors, nurses, etc. from liability for ordinary, but not, gross negligence
- Exception 2 Special Relationship: A special relationship between the parties may create a duty to act (parent-child)
Common carriers, innkeepers, shopkeepers, and others that gather the public to profit owe duties of reasonable care to aid or assist their patrons
In addition, places of public accommodation have a duty to prevent injury to guests by third persons - Exception 3: Peril Due to Own Conduct: One has a duty to assist someone they have negligently or innocently placed in peril
Emergency Situations: A defendant must act as reasonably prudent person would under the same emergency conditions
The emergency is not to be considered if its of the defendants own making
Bailment Duties: In a bailment relationship, the bailor transfers to the bailee possession of goods for a temporary period of time.
Standard of Care: the bailees standard of care depends on who benefits from the bailment:
1. Sole benefit of the bailor bailment: Low standard of care
2. Sole benefit of the bailee bailment: High standard of care
3. Mutual benefit bailment(bailment for hire): Ordinary standard of care
Negligence: Trespassers To Land
There are four different standard of cares based on 4 different types of entrants:
Unknown Trespassers: No duty is owed to an undiscovered trespasser
Known/Anticipated Trespassers: For discovered or anticipated(reasonably expected) trespassers, the land possessor must warn of or make safe any conditions that are:
1. Artificial Condition(something constructed by human beings)
No duty for naturally occurring hazardous condition
2. Highly Dangerous(involving risk of death or serious bodily injury)
3. Concealed; and
4. Known to the land possessor in advance
Licensee: One who enters onto the land with the possessor’s permission for their own purpose or business rather than for the possessors benefit.
Social guests and solicitors are licensees
Duty: As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:
1. Concealed
2. Known to the land possessor in advance
Must protect from all known traps
The possessor has no duty to inspect or repair
Land possessor must exercise reasonable care in the conduct of “Active Operations” on the property
Invitees: Invitees enter onto the land in response to an invitation by the possessor of the land
This means they enter for a purpose connected with the business of the land possessor or enter as member’s of the public for a purpose for which the land is held open to the public
Scope of Invitee: An invitee will lose invitee status if they exceed the scope of the invitation
Duty: The land owner or occupier owes a duty to invitees regarding hazardous conditions that are:
1. Concealed
2. Known to the land possessor in advance or could have been discovered by a reasonable inspection
Attractive Nuisance Doctrine-Trespassing Children: Standard of care to trespassing children is reasonably prudent care under foreseeable circumstances to protect for artificial hazards.
To establish the doctrines applicability, the plaintiff must show:
1. A dangerous condition on the land that the owner is or should be aware of
2. The owner knows or should know that children might trespass on the land
3. The condition is likely to cause injury(it is dangerous because of the child’s inability to appreciate the risk)
4. The expense of remedying the situation is light compared with the magnitude of the risk
How To Satisfy Premises Liability Duty:
1. Repair
2. Replace
3. Remove
4. Warn entrant about hazardous condition
Warning must be reasonable to communicate danger to entrant
Firefighter and Police Officers: No duty owed for risks inherent to job.
Negligence Per Se
A plaintiff may borrow a criminal statue with a clearly stated specific duty as an alternative to the reasonably prudent person standard if:
1. The plaintiff is within the protected class
2. The statue was designed to prevent the type of harm suffered by the plaintiff
Exception: Excused violation: Violation of some statues may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendants control(impossible)
Negligent Infliction of Emotional Distress
General Rule: The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.
Zone of Danger Rule
1. Plaintiff is within “zone of danger”; and
2. They must suffer physical symptoms from distress
“Zone of Danger”: P is sufficiently close to the D such that they are subject to a high risk of physical impact
In near miss case, the emotional distress caused by D’s conduct must manifest itself in physical symptoms
Severe shock to the nervous system that causes physical symptoms satisfies this condition
Bystander Cases
A. bystander outside the zone of danger of physical injury who sees the D negligently injure another can recover damages for their own distress as long as:
1. The plaintiff and the person injured by the defendant are closely related
2. The plaintiff was present at the scene of injury and personally observed the event
Business Relationship Cases:
The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from a commercial relationship, and it is highly foreseeable that careless performance by defendant will produce emotional distress
Examples: Misdiagnosis from doctorate that patient has terminal illness; mortuary’s negligent cremation of deceased contrary to families instructions
Counter-Example: Dry cleaner accidentally destroys customers favorite shirt. This would NOT work for emotional distress
There is no physical symptoms requirement here as well
Breach of Duty
Breach: Concrete, specific behavior by defendant that falls shorts of relevant standard of care
Breach can be affirmative act or omission
Negligence Per Se: Where duty of care is established by statue, proof of violation of the statue is conclusive evidence of breach and duty
Custom or Usage: Evidence of custom or usage may be used to establish how a reasonable person should have acted. However this evidence is NOT CONCLUSIVE if conduct amounted to negligence
Example: Court could find that the whole industry is acting negligently
Res Ipsa Loquitur: Used by plaintiff without information about defendants breach
The plaintiff must show that:
1. The accident causing the injury is a type that would not normally occur unless someone was negligent
2. The negligence is probably attributable to the defendant
This means this type of accident ordinarily happens because of the negligence of someone in the defendants position
Effect of Res Ipsa Loquitur: When established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant
P can still lose if other elements are not met, just no directed verdict
Actual Causation
Once negligent conduct is shown, the plaintiff must show that the conduct was cause of their injury.
For liability to attach, the plaintiff must show both:
1. Actual cause; and
Link between breach and harm
2. Proximate Cause
There are multiple tests for actual cause:
1. “But For” Test: An act or omission is a actual cause of an injury when the injury would not have occurred “but for” the act or omission
Application: Applies where several acts(each insufficient to cause the injury alone) combine to cause the injury
Defense: A defendant can refute this by showing that the plaintiff would have still been injured “even if” the act or omission did not occur
- Substantial Factor Test: Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendants conduct is the cause in fact if it was a substantial factor in causing the injury.
Defendant liable if breach contributed in substantial way to ultimate injury
Exam Tip: Use this test instead of “but for” test if theres 2 defendants + 2 breaches + merged causation
Example: D1 negligently throws lit cigarette out into forest. D2 forgets to extinguish campfire in forest. Both act burn down forest simultaneously. D1 and D2 are jointly and severally liable and P can recover the full amount of damages from either one - Unascertainable Clauses Approach: This test applies when there are two acts, but only one of which causes injury, but it is not known which one.
Burden of Proof: The burden of proof shifts to the defendants, and each must show that his negligence is not the actual cause
Example: D1 and D2 both negligently fire shotguns in P’s direction. P is hit by one pellet but cannot tell which gun fired the shot. D1 and D2 will have to prove that the pellet was not theirs. If unable to do this, they may both be liable
Substantial Factor Test vs Unascertainable Clauses Approach: Under the substantial factor test, both parties caused the harm. While under the unascertainable causes approach, although both parties acted negligently, only one caused the harm
Proximate Causation
Proximate Cause: Even though the conduct actually caused the plaintiffs injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or non liability for unenforceable or unusual consequences of ones act
Foreseeability Test: A defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.
For all four of these scenarios the defendant will be held liable:
1. Medical Malpractice
Example: D runs red light and breaks Ps leg in car accident. Doctor puts cast on wrong which caused D’s leg to need to be amputated. D has to pay for amputated leg (doctor could also be liable)
- Negligence of rescuers
Example: D runs red light and breaks P’s leg in car accident. Rescuer comes and picks up D by shoulder and dislocates it. Driver is liable - Protection or reaction forces to the defendants conduct, including efforts to protect person or property
D runs red light into huge group of people and breaks one leg. Everyone starts stampeding and gets injured. D liable for injuries in stampede - Disease or accident substantially caused by the original injury
Damages
Eggshell-Skull Doctrine: In all cases, the defendant takes the plaintiff as they find the plaintiff, meaning the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable
Personal Injury: The plaintiff is to be compensated for all their damaged (past, present, prospective), both economic damages(medical expenses) and noneconomic damages(pain and suffering). They may also recover emotional distress damages.
Property Damages: The measure of damage is the reasonable cost of repair or, if totally destroyed, the fair market value at the time of the incident.
No emotional distress damages to property(thus no damages for death of pet)
Punitive Damages: Not available in negligence cases unless conduct is “wanton and willful” or reckless or malicious
Collateral Source Rule: Damages are not reduced just because the plaintiff received benefits from other sources(health insurance)
Minority: Contributory Negligence: Negligence on the part of the plaintiff that contributed to the plaintiffs injuries
Standard of Care: Same as normal negligence, a reasonably prudent person
Contributory Negligence is not a defense to intentional torts
Majority: Comparative Negligence: In comparative negligence states, the plaintiffs contributory negligence is not a complete bar to recovery.
Test: Instead, the tier of fact weighs the plaintiffs negligence and reduces damages accordingly (P is 10% at fault, their damages are reduced by 10%)
Pure Comparative Negligence(Apply this unless told otherwise): Allows recovery no matter how great plaintiffs negligence was.
Partial Comparative Negligence: Bars the plaintiffs recovery if their negligence was more serious than the defendants negligence.
Joint and Severally Liable: When two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable.
This means the plaintiff can recover full damages from any defendant the plaintiff chooses
Contribution: Allows a defendant who pays more than their share of damages under joint and several liability to have a claims against the other jointly liable parties for the access
Test: It apportions responsibility among those at fault
Comparative Contribution: Contribution is imposed in proportion to the relative fault of the various defendants
Strict Liability
Products Liability: Elements of Strict Liability: To find liability under a strict liability theory, the plaintiff must show:
1. The defendant is a merchant
Everyone in distribution chain is a merchant: manufacturers, wholesalers, and retailers.
Users, consumers, and bystanders can sue
- The product is defective
A. Manufacturing Defect: Product emerges from manufacturing different from and more dangerous than an ordinary consumer would expect (D must anticipate reasonable misuse)
B. Design Defect: Risks associated with products design outweigh utility of design.
Feasible Alternative Approach: P must usually show that alternative design would (1) be safer; (2) Was practical; (3) was economically feasible(Knives are fine because the danger is apparent and no way to make safer without destroying utility)
C. Information Defects: Manufacturers failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users
Adequate Warnings: Warning must be: (1) Prominent(not hidden); (2) Comprehensible(multiple languages, don’t know how to read like children, etc.); (3) Provide information about mitigating the risk - The product was not substantially altered since leaving the defendants control
Presumption that product moved in ordinary channels of distribution has no alteration - The plaintiff was making a foreseeable use of the product at the time of the injury
A defendant will not be held liable for dangers not foreseeable at the time of marketing
Disclaimers Ineffective: Disclaimers are irrelevant in strict liability cases, even if personal injury or property damage occurs
Physical injury or property damages must be show. If sole claim is of economic loss recovery will be denied
Abnormally Dangerous Activity:
Courts generally impose two requirements for finding an activity to be abnormally dangerous:
1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
2. The activity is not a matter of common usage in the community
Dangerous Animals:
1. Domestic Animals(Including farm animals): An owner is not strictly liable for injuries caused by domestic animals unless they have knowledge of that particular animals dangerous propensities that are not common to the species.
Dangerous Propensities: First time dog bites someone you are not strictly liable. Every time thereafter you are on notice of the dangerous propensity and will be strictly liable
Normally Dangerous Domesticated Animals: Injury caused by the normally dangerous characteristics of domesticated animals does not create strict liability(bulls or honeybees)
Trespassing Animals: An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals
- Wild Animals: An owner is strictly liable to licensees and invitees for injuries caused by wild animals(even if kept as pets)
Affirmative Defenses
1. Traditional Contributory Negligence Rule(Only use if traditional appears in question): If the plaintiff is knowingly encountering dangerous situation their recovery is barred
Applies to dangerous animals, abnormally dangerous activity and products liability
- Modern Comparative Negligence(Use unless told otherwise): Jury assigns percentages of comparative liability
Nuisance
Nuisance: An invasion of property rights by tortious conduct.
There are two types of nuisances:
1. Private Nuisance
2. Public Nuisance
Private Nuisance: A private nuisance is:
1. A substantial, unreasonable interference
2. With another individuals use or enjoyment of the property
The individual must actually possesses or has a right of immediate possession
Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community
Unreasonable interference: Must be based on intent or negligence.The severity of the injury must outweigh the utility of the defendants conduct.
The defendant must have intent, but simply knowing about the activity causing the nuisance even if the result isn’t your intent is enough (neighbor asks you to stop and you say no)
Public Nuisance: An act that unreasonably interferes with the health safety, or property rights of the community.
A private party may only recover from a public nuisance if the private party suffered unique damages not suffered by the public at large
Vicarious Liability
Respondent Superior: Employers are vicariously liable for torts of their employees if the torts are committed within the scope of employment.
An act will be considered to have been within the scope of employment if it was:
1. Expressly authorized by the employer; or
2. Of the same general nature as the employees job and motivated by a desire to to serve the employer
Intentional Torts: Intentional torts are generally outside the scope of employment unless:
1. The employee is furthering the business of the employer
2. Force is authorized in the employment (a bouncer)
3. Friction is generated by the employment (bill collector)
Independent Contractor: In general, the hiring party will not be vicariously liable for the tortious acts of an independent contractor
Exception: Business owners can be held liable if independent contractor is working on business premises and hurts a customer
Exception: Principal will be held vicariously liable for inherently dangerous activities performed by the independent contractor
Direct liability: The employer can be directly liable for his own negligence if, he fails to supervise employees or otherwise acts negligently in hiring, firing, or entrustment.
Indemnification: Involves shifting the entire loss from out-of-pocket defendant between or among tortfeasors
Indemnity is available in two situations:
1. Vicarious liability situations (Active tortfeasor pays full price they indemnify to passive tortfeasor)
2. Under strict products liability for the non-manufacturer (Thus if anyone but manufacturer pays full prices, they indemnify to manufacturer)
Partners and Joint Ventures:
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope an course of the affairs of the partnership or joint venture
Automobile Owner for Driver:
General Rule: An automobile owner is not vicariously liable for the tortuous conduct of another person drive their automobile
Exception: The owner is liable for tortious conduct of immediate family or household members who are driving with driver consent
Exception: Permissive Use: Drive will be liable if they consent to anyone drive their car(rental car companies are not included)
Parent-Child
General Rule: Parent will not be held vicariously liable for the tortious conduct of their children
However, parents may be liable for the willful and intentional torts of their minor children up to a certain dollar amount($10,000)
Parent may be held liable if child is acting as agent or they are negligent in allowing there child to do a dangerous activity(play with a sharp item)
Loss of Consortium:
1.Between Spouses: Either spouse may bring an action for indirect interference with consortium and services caused by the defendants intentional or negligent conduct against the other spouse
This means if one spouse is injured the other may bring a loss of consortium claim for the loss of intangible benefits of their relationship(love, emotional support, household support, companionship, sex)
2. Parent-Child: A parent may maintain an action for loss of child’s services and consortium as a result of the defendants tortious conduct, whether intentional or negligent. Child may not bring same claim for parent.
