Torts

Question 1

When a D intends to commit a tort against one person, his intent may be transferred to:

Answer 1

1. The same tort against a different person; or
2. A different tort against the same person; or
3. A different tort against a different person.

Question 2

What torts are applicable with the doctrine of transferred intent?

Answer 2

1. Battery
   
   2. Assault
   3. False imprisonment
   4. Trespass to land
   5. Trespass to chattel

Question 3

Is mistake as to D’s lawful entry a defense to Trespass to Land?

Answer 3

Mistake as to the lawfullness of the entry is no defense so long as D intended entry onto that particular piece of land. Intent to trespass is not required.

Question 4

If D’s tried for trespass to land but no physical object enters the land…

Answer 4

If no person or physical object enters the land, as in the case of blasting concussions, courts usually do not treat the case as trespass, but as nuisance, or strict liability if ultrahazardous activities are involved.

Question 5

Acts that may constitute conversion include:

Answer 5

1. Wrongful acquisition, e.g. larceny or embezzlement
   
   2. Wrongful transfer, e.g. selling, misdelivering, pledging
   3. Wrongful detention, e.g. refusing to return to owner
   4. Substantially changing
   5. Severely damaging or destroying
   6. Misusing

Question 6

What intent is required for conversion?

Answer 6

D need not intend the damage to or loss of the property; she need only intend to perform the act that caused the damage or loss.

Question 7

Accidentally causing damage or loss is not conversion unless …

Answer 7

the actor was using the chattel without permission when the accident occurred. (The actor may be liable for negligence however.)

Question 8

Defenses to intentional torts

Answer 8

consent; self defense; defense of others; defense of property; re-entry onto land (modern statutes don’t allow for self-help); recapture of chattels (privilege as long as enter onto the land of a wrongdoer to remove chattel at a reasonable time and in a reasonable manner-generally required though is a prior demand for return of the chattel); privilege of arrest (depending on the facts–can enter another’s land for arrest purposes); necessity; discipline (reasonable force & the proper relationship)

Question 9

Is a negligent defendant liable to a rescuer?

Answer 9

A rescuer is a foreseeable P so long as the rescue is not wanton. D is thus liable if she negligently puts herself or a third person in peril & P is injured attempting a rescue. (minus those under the fireman’s rule)

Question 10

Is there a duty owed to an intended third party beneficiary of economic transactions?

Answer 10

Intended third party beneficiaries of economic transactions are owed a duty of care if D could reasonably foresee that negligence would cause harm.

Question 11

Determining actual causation for negligence actions

Answer 11

Two tests are used: but-for & substantial factor. Use both in every analysis.
But-for: If P’s injury would not have occurred but for D’s negligence, then D’s negligence is the cause-in-fact of P’s injury.
Substantial factor: If D’s negligence materially contributed to causing P’s injury, then D’s negligence is a substantial factor in causing, & is the cause-in-fact of, P’s injury.

Note that the but-for test may fail, as with an injury with multiple causes. The substantial factor test proves causation in these cases.

Question 12

Proximate cause and intervening causes…

Answer 12

Intervening causes may cut off the chain of liability if they are found to be extremely unforeseeable & therefore superseding. Exception: even unforeseeable intervening acts will not cut off liability if the type of harm suffered is the same type that D’s negligence would have foreseeably caused. E.g. a cow instead of a car knocking over a lamppost.

Only the type of harm need be foreseeable, not the manner & extent of the harm.

Question 13

Are automobile accidents in medical transport superseding intervening causes for the proximate cause element of a negligence claim?

Answer 13

Automobile accidents in medical transport & medical malpractice have been held to not be superseding intervening causes, though the chance of them happening is slight. Extreme medical malpractice is an exception.

Question 14

Is medical malpractice an intervening act that would cut off liability for defendant’s negligence?

Answer 14

Proximate Cause Issue: Automobile accidents in medical transport & medical malpractice have been held to not be superseding intervening causes, though the chance of them happening is slight. Extreme medical malpractice is an exception.

Question 15

Name some “dependent” intervening forces that will not cut off the chain of liability for defendant’s negligence:

Answer 15

1. Negligence of rescuers
   
   2. Efforts to protect persons or property
   3. “Reaction” forces
   4. Subsequent disease
   5. Subsequent accident

Negligent acts by third persons & acts of god will not cut off liability if they were foreseeable.
It is irrelevant whether an intervening act is criminal. If it is foreseeable, then it will not be found to be a superseding cause.

Question 16

If the facts have a foreseeable result (negligently allowing gas to accumulate resulting in an explosion) which is caused by an unforeseeable intervening force, will D be liable?

Answer 16

When foreseeable results are caused by an unforeseeable intervening force, D is liable as long as the intervening force is not a crime or intentional tort by a third party. E.g., if D negligently leaves explosive gases in a garage, & an unforeseeable bolt of lightning causes an explosion, D is liable. But if an arsonist caused the explosion, D is not liable.

Ultimately, the question of whether a D’s negligence can be seen as the proximate cause of a P’s injury is determined by the courts, & public policy concerns may enter into the decision.

Question 17

Damages-Generally in a negligence action

Answer 17

Negligence requires proof of actual harm for damages to be awarded. (Unlike, for instance, trespass, which may result in no harm but courts may award symbolic damages.) So make note of P’s actual injury in this section.
Generally, a P will be awarded compensatory damages as compensation for the injuries she sustained as a result of D’s negligence. P is compensated for all injuries, past, present, & prospective.
P has a responsibility to mitigate damages (as in all cases).

Question 18

Property damaged due to negligence–what damages can be recovered?

Answer 18

For property damage, the damages are the loss in value, i.e. the reasonable cost of repair, or the fair market replacement value if property is damaged beyond repair.

Question 19

Negligence caused personal injury claim–what damages can be recovered?

Answer 19

For personal injury, pecuniary or economic damages may include compensation for medical expenses, lost wages, & diminished earning capacity. These “special damages” must be proven by evidence. Non-pecuniary losses may include pain & suffering & emotional distress. These “general damages” are understood to flow naturally from the injury & do not need to be specially proven.

P may not recover interest from date of damage in personal injury actions, & may not recover attorneys’ fees.

Question 20

Can insurance liability reduce D’s liability to the policy holder in a negligence claim against D?

Answer 20

In most jurisdictions, D may not introduce evidence of aid from other sources, such as insurance, to reduce the damage award. A growing minority allows this in certain actions, such as medical malpractice.

Question 21

What are the rules for punitive damages in a negligence action?

Answer 21

Punitive damages are not compensatory & are usually awarded only for intentional torts, but they may be awarded against a negligent D whose conduct was wanton & willful, reckless, or malicious.

Question 22

Defenses to negligence claims

Answer 22

The two main defenses to negligence are contributory negligence & assumption of risk.

Question 23

When does the last clear chance doctrine apply in a case of negligence?

Answer 23

Note that when it is called “contributory negligence,” it is meant to be a complete defense. Look for “last clear chance doctrine” situations. Last clear chance doctrine is Plaintiff’s rebuttal to Plaintiff being barred recovery in a contributory negligence jurisdiction. Last clear chance doctrine: Contributory negligence will not bar recovery if it occurs before the D’s negligence, thus giving the D the last clear chance to avoid injury to the P. Modernly, this doctrine is less important, as contributory negligence is rarely a complete bar to recovery anyway.

Question 24

Whether there are contributory negligent acts on the part of plaintiff, what effect will plaintiff’s failure to mitigate have on plaintiff’s ability to recover?

Answer 24

Failure to mitigate damages is an avoidable consequence, & will reduce damages. It is not contributory negligence.

Question 25

Imputed contributory negligence:

Answer 25

P will often be found to be contributorily negligent when she is in a special relationship with one negligent party, thus barring recovery against a third negligent party:

1. Master/servant: imputed
2. Partners & joint venturers: imputed
3. Husband & wife: not imputed, but recovery barred b/c loss of services is derivative to main action & will not succeed if main action doesn’t.
4. Parent & child: not imputed, but recovery barred b/c loss of services is derivative to main action & will not succeed if main action doesn’t.
5. Automobile owner & driver: not imputed unless she would be vicariously liable (e.g. master servant, etc.)

Question 26

How is contributory negligence analyzed and when can plaintiff be found to contribute negligence to the claim?

Answer 26

Contributory negligence is analyzed exactly like ordinary negligence: the P must have failed to exercise ordinary care, & her negligence must be a cause-in-fact & a proximate cause of her own injuries.

P may be found contributorily negligent for remaining in danger, or for violating a statute (negligence per se).

Question 27

Assumption of the Risk

Answer 27

This is a defense to negligence suits.
A P may be barred from recovery when she knowingly & voluntarily assumes a particular risk.

Public policy concerns may guide the decision of whether assumption of risk will bar recovery.

The knowledge of the risk is judged by a subjective standard: it must be actual knowledge on the part of the P.

The P must have knowledge of the full magnitude & implications of the risk.

Assumption of risk may be express or implied.

Question 28

Express Assumption of the Risk

Answer 28

Express assumption of risk is a complete defense. It occurs when P explicitly states that she assumes a risk, e.g. signing a waiver form. Express assumption of risk may be invalidated by the courts when it contradicts public policy.

Question 29

Implied Assumption of the Risk

Answer 29

Implied assumption of risk occurs when P does not explicitly state that she assumes a risk. A majority of states subsume implied assumption of risk into comparative negligence; it is not a complete bar to recovery, but will reduce the amount of P’s damages.
Common carriers & public utilities may not limit their liability with disclaimers.

When a statute is enacted to protect a particular class, members of that class may not assume a risk.

Risks will not be assumed in situations involving fraud, force, or an emergency.

Question 30

Negligence Per Se

Answer 30

Duty: The duty is determined by statute. A D has a duty to a P if she violated a statute &:

1. The P is in the class of persons the statute was designed to protect; &
2. The harm is of the type the statute was designed to prevent.

Breach: D’s violation of the statute is presumed to be a breach of the duty. However, the presumption can be rebutted if:

1. There was greater danger in complying with the statute than in violating it; or
2. There was a sudden emergency not of D’s making; or
3. D did not or should not know of the reason for diligence; or
4. D used reasonable care OR
5. D lacked the capacity to comply with the statute OR
6. D was unable to comply after reasonable efforts to comply.

Licensing statutes have been determined, as a matter of law, to be for the purpose of governmental regulation, not for people’s protection.
Child defendants: In most jurisdictions, when a child D has violated a statute, the child standard of care is used to determine duty, rather than the violation of the statute.

Compliance with a statute cannot be used to prove that a D exercised reasonable care.

Causation, damages, & defenses: Determined as in ordinary negligence.

Question 31

Res ipsa loquitur

Answer 31

Duty: Determined as in ordinary negligence.

Breach: Res ipsa loquitur is used to determine breach when the D’s specific conduct cannot be identified. Breach may be found if:

1. The injury-causing accident is one that would not ordinarily occur absent negligence, &
2. The instrumentality involved in the accident was under the exclusive control of the D, &
3. The P did not contribute to her injury in any way.

The doctrine creates a permissible inference of breach from circumstantial evidence.

The doctrine does not change the burden of proof nor create a presumption of negligence. No directed verdict may be given for the D.

D may present evidence of due care. The jury may choose not to infer negligence, even in the absence of D’s evidence of due care.

Causation, damages, & defenses: Determined as in ordinary negligence.

Question 32

When is there a duty to act?

Answer 32

Nonfeasance creates no duty, & a claim of negligence will fail. However, in the case of a special relationship or circumstance, a duty to rescue or take other affirmative steps (make repairs, protect from a third party, etc.) is imposed.

In these cases, no Palsgraf foreseeable P analysis is necessary; the special relationship or circumstance establishes the duty.

Special circumstances:
• Creating the peril: if D created the peril, she has a duty to rescue.
• Taking charge: if D begins a rescue attempt, she has a duty either to act reasonably in continuing the attempt (majority view) or simply to not leave the P worse off than she found her (minority view). A number of states have enacted “good Samaritan” statutes which exempt gratuitous rescuers, esp. doctors & nurses, from liability for ordinary negligence. There may still be liability for gross negligence.

Special relationships:
•	Innkeeper-guest
•	Custodian-ward
•	Carrier-passenger
•	Landowner-invitee
•	Employer-employee
•	Statutory duty (e.g. parent-child)
•	Contractual duty: misfeasance creates liability, nonfeasance does not.  (E.g. if lifeguard falls asleep on the job, she is liable, but if she just doesn’t show up, she is not.)
•	Public policy
•	Companions in a social venture/common undertaking
•	Mutual dependence

In most modern jurisdictions, an automobile driver owes merely the reasonable person standard of care to a guest in her car.

Question 33

Negligent Infliction of Emotional Distress

Answer 33

Duty: Negligent infliction of emotional distress (NIED) may be used to establish a duty to a P who was not physically harmed by D’s negligence, but suffered emotional distress. If the P suffered physical harm, then she could sue under ordinary negligence & her emotional distress would be tacked on as damages.

Question 34

The Rule for Direct Victims in a case for Negligent Infliction of Emotional Distress

Answer 34

The P may be a direct victim, as in a case where a negligent driver speeds toward the P, narrowly missing her & causing emotional distress. Historically, the P must have suffered a physical impact from the accident, but that is no longer necessary. Modernly, a P may recover if she was in the “zone of danger.” Physical manifestations of the emotional distress are required in most jurisdictions.
Direct victim cases may also include cases with no “zone of danger,” as where a P is inaccurately & negligently informed that a family member has died, or where a P is negligently misdiagnosed as having a terminal disease.

Question 35

The Rule for Bystandaers in a case for Negligent Infliction of Emotional Distress

Answer 35

The P may also be a bystander, rather than the direct victim, as in the case of a bystander who suffers emotional distress at the sight of a loved one being injured by a negligent D.
In bystander cases, under the modern majority analysis, to establish a duty, the P must be a close relative of the victim, & be at risk of injury herself. This is the “zone of danger” test again. The line can be blurred between whether the P’s emotional distress is related to her own risk of physical injury or the sight of her relative’s physical injury.
Modernly, some jurisdictions (Dillon v. Legg jurisdictions) will allow a P to recover even if she is outside the zone of danger, but still near the scene of the accident. She must pass a three-prong test:
• suffer physical manifestations of emotional distress (in most Dillon jurisdictions)
• be closely related to the victim
• have contemporaneous observance of the accident (But this has varying interpretations. Thing v. LaChusa in California requires actually seeing the accident happen, not coming upon the immediate aftermath.)

The NIED analysis establishes the foreseeability of the P (this replaces the Palsgraf analysis), but it may still be necessary to analyze what the duty is (e.g. reasonable care, duty to warn, professional standard, etc.). This depends on whom the duty is owed to.
In direct victim cases, the P is the direct victim, so the duty is owed by the D to the P.
In a bystander case, the NIED analysis establishes the foreseeability of the P, but the duty is the duty the D owed to the direct victim (whatever that duty may be). The negligence in question is the negligence toward the direct victim.

Breach, causation, damages, & defenses for direct victims: If the P is the direct victim, these elements are determined as in ordinary negligence.

Breach for bystanders: If the P is a bystander, D’s breach is her breach of her duty to the direct victim, which establishes her negligence.

Causation for bystanders: Causation in bystander cases refers to whether the D’s negligence is the cause of P’s emotional distress. Causation of the direct victim’s injury is analyzed under the direct victim’s own claim. The foreseeability analysis is accomplished under the NIED duty analysis.

Damages: Determined as in ordinary negligence.

Question 36

For negligent infliction of emotional distress of a bystander, what defenses does the defendant have?

Answer 36

Defenses: Note that for defenses against a bystander P, D is permitted to use the same defenses that she can use against the direct victim’s negligence claim. E.g., if the victim was contributorily negligent, that defense will be used against an NIED bystander P even though the NIED P was not herself contributorily negligent. If the victim assumed a risk, the defense will likewise be used even if the P assumed no risk.

Question 37

Ultraharzardous Activities:

Answer 37

An activity may be characterized as ultrahazardous when it involves a substantial risk no matter how much care is exercised. Whether an activity is ultrahazardous is a question of law that the court can decide on a motion for a directed verdict.

Three requirements:

1. Activity must involve a risk of serious harm to persons or property;
2. The activity cannot be performed without risk of serious harm, no matter how much care is taken; &
3. It must not be an activity that is commonly engaged in by persons in the community.

There is still a foreseeable P notion in most jurisdictions.

Examples of activities held to be ultrahazardous include: manufacturing or blasting explosives, crop dusting, & fumigating.

Question 38

Three requirements for Ultrahazarous activiies include:

Answer 38

Three requirements:

1. Activity must involve a risk of serious harm to persons or property;
2. The activity cannot be performed without risk of serious harm, no matter how much care is taken; &
3. It must not be an activity that is commonly engaged in by persons in the community.

Question 39

Products Liability Requirements

Answer 39

There are five types of action or theories of liability possible in products liability.
•	Intent
•	Negligence
•	Warranty
•	Strict liability in tort (most common)
•	Misrepresentation

Any case where a P is injured by a defective product may give rise to a claim in several of these types of action. Consider all theories unless instructed otherwise.

In any products liability situations, the product must have been defective when it left D’s control.

The factual situations accounting for nearly all claims in product liability are:
•	Mismanufacture
•	Defective design
•	Failure to warn or inadequate warning
•	Misrepresentation

Intentional tort actions are very rare in products liability cases. The tort would most likely be battery.

Question 40

What are the specific elements that must be present for a products liability action regardless of the type of action or theory of liability plaintiff brings the action under

Answer 40

Any case where a P is injured by a defective product may give rise to a claim in several of these types of action. Consider all theories unless instructed otherwise.

In any products liability situations, the product must have been defective when it left D’s control.

Question 41

In a product’s liability action based in negligence, what are the duty requirement specifically?

Answer 41

Duty: Privity is not an issue, P simply must be a foreseeable P. D has a duty to exercise reasonable care in design, manufacture, inspection, warning, marketing, etc. A retailer has no duty to inspect if the product comes sealed from the manufacturer, unless she has reason to know it is defective. Choice of D is important, as obviously in a case of defective manufacture the D should be the manufacturer rather than the retailer. Duty can be established by statute, a type of negligence per se.

Question 42

In a product’s liability action based in negligence, what is the breach requirement specifically?

Answer 42

Breach: Apply risk/utility analysis to the conduct, whether it is mismanufacture, defective design, or failure to warn. For negligent design, analyze reasonable alternative design. Analyze these factors: usefulness & desirability of the product, availability of safer alternative products, dangers of product that have been identified at time of trial, likelihood & probable seriousness of injury, obviousness of danger, normal public expectation of danger, avoidability of injury by care in use or product, feasibility of eliminating the danger.

Question 43

What are some common problems in product’s liability cases dealing with defects?

Answer 43

Common problems with defects are when P misused the product (manufacturer may be required to anticipate reasonably foreseeable misuse), when the risk is scientifically unknowable (no liability where manufacturer could not have known of risk), or when the P has an allergy (modern trend is to require warnings).

Question 44

Product’s liability & Warranty Actions

Answer 44

WARRANTY: Duty & breach: Warranty claims arise under principles of contract. The duty is contractual & the breach is breach of contract.

Privity has some role: only the consumer or member of consumer’s household may sue. The D is the entity which offers the warranty. For express warranty & implied warranty of merchantability, the D must be a commercial entity which normally sells such products. The implied warranty of fitness for a particular purpose, however, has no requirement that the seller ordinarily sells such goods.

Warranty may be express or implied. Express warranty is a written warranty or a statement by a seller. Implied warranty is the implied warranty of merchantability or implied warranty of fitness for a particular purpose. It is possible to breach, one, two, or all three of these warranties.

An express warranty must be a factual statement about the product, not mere “puffery.”
The UCC provides that every new product has an implied warranty of merchantability for its ordinary purpose, when sold by a merchant who normally sells such goods. The warranty is that the product will perform as an ordinary consumer would expect.
The UCC provides that when a seller has specialized knowledge about a product & says that it is fit for a particular purpose, & the buyer relies upon that expertise & recommendation, a warranty of fitness for a particular purpose arises.

Causation: Breach of warranty must have proximately caused the harm.

Damages: A P may recover under warranty even if the only damage is to the product itself.

Defenses: A disclaimer may release D from liability under an implied warranty. E.g. selling a product “as is.”

Question 45

Strict Liability In Tort

Answer 45

Strict liability in tort is an alternative to negligence & warranty actions; it eliminates the requirements of proving negligence & showing privity.

• Generally, a commercial supplier will be strictly liable when it places a defective product in the stream of commerce, & the defect causes injury to a foreseeable P (must be foreseeable (consumer, user, bystander, etc.); no privity required.
• Proximate causation must still be present.
• Strict liability: No negligence required, no fault required.
• The defect must be the actual & proximate cause of the injury.

Damage only to the product itself is not recoverable. There must be other property damage or personal injury (& then damage to the product itself may be tacked on).

Historically, in order for a P to recover, she had to be using the product in its intended manner. Modernly, all foreseeable uses are OK (e.g. standing on a chair).

Question 46

In a product liability action based on strict liability,

Answer 46

Reasonableness of D’s action, due care, etc. is no defense so long as product is defective.

Question 47

In a product liability action, who can be strictly liable?

Answer 47

D may be any commercial supplier, anywhere along the chain of commerce, e.g. manufacturer, distributor, retailer. Does not include suppliers of services. Does not include private individuals who sell products.

Question 48

The standard to determine whether the product is defective:

Answer 48

The product can be defective through mismanufacture, defective design, or inadequate warning.

The determination of whether the product is defective is made using either an “unreasonably dangerous” test, a “consumer expectation” test, or a risk/utility test.

Question 49

Products liability and misrepresentation claims

Answer 49

Misrepresentation is used as a cause of action when any person is injured in reliance on the product seller’s misrepresentation of fact (e.g. assurances of a product’s safety).

Unlike warranty, P must prove actual reliance.

Unlike strict liability, the product need not be dangerously defective.

Question 50

defenses in a products liability action

Answer 50

DEFENSES: For negligence, both contributory negligence & assumption of risk may be used; they will both be a complete bar.

Defendants in strict liability actions are limited to assumption of risk as a defense, on the theory that P’s own conduct is immaterial. However, unforeseeable intervening acts by P, such as tampering with the product, may cut off the chain of liability.

Defendants in warranty may use assumption of risk & waiver.

Question 51

Vicarious Liability

Answer 51

Respondeat superior: Employer vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship.

Intentional torts by employees are generally not within the scope, except:

1. Force authorized in the employment: e.g. bouncer
2. Friction generated by employment, e.g. bill collector
3. Employee furthering business of employer, e.g. removing customers from premises b/c rowdy.

Independent contractors: Principal generally not liable for acts of her agent when agent is an independent contractor. Exceptions:

1. Independent contractor is engaged in inherently dangerous activities, e.g. blasting with dynamite.
2. Duty is nondelegable for public policy reasons, e.g. duty to keep business premises safe or duty of motorist to keep car in safe working order.

Employer may always be liable for her own negligence in selecting the employee or independent contractor. This is not vicarious liability.

Persons engaged in a concert of action are regarded as members of a joint enterprise.

Each partner or joint venturer is vicariously liable for the torts of the others.

A joint venture must have a common purpose (sometimes a common business purpose) & mutual control.

Automobiles: general rule is that owner is not vicariously liable. Some states make owner liable for immediate family members. Others impose liability for anyone driving with owner’s consent. In these cases, the owner is liable but may collect from the negligent party.

Owner may always be liable for her own negligence in entrusting the car to a particular driver. This is not vicarious liability.

Bailor is not vicariously liable for torts of bailee, but may be liable for her own negligence in entrusting the bailee.

Parents are not vicariously liable for torts of their children at common law. Most states make parents liable for willful & intentional torts of their children up to a certain dollar amount (e.g. $5,000).

Note on capacity for intentional torts: a child or insane person is liable so long as they intended the action required by the tort. If an insane person intended a harmful or offensive contact with a person, it does not matter what other circumstances the insane person thought were present. However, if the insane person intended a contact with a person whom she believed was a horse, then she is not liable for battery.

Courts may impose vicarious liability when child is acting as agent for parent.

Parent may be liable for her own negligence in allowing the child to do something.

Tavern keepers: At common law, no liability for drunken customers’ torts. Many states have enacted “dramshop acts” imposing liability. Other states’ courts have imposed liability without dramshop acts, based on ordinary negligence.

Question 52

Intentional torts by employees are generally not within the scope, except:

Answer 52

1. Force authorized in the employment: e.g. bouncer
   
   2. Friction generated by employment, e.g. bill collector
   3. Employee furthering business of employer, e.g. removing customers from premises b/c rowdy.

Question 53

Vicarious liability and independent contractors

Answer 53

Principal generally not liable for acts of her agent when agent is an independent contractor. Exceptions:

1. Independent contractor is engaged in inherently dangerous activities, e.g. blasting with dynamite.
2. Duty is nondelegable for public policy reasons, e.g. duty to keep business premises safe or duty of motorist to keep car in safe working order.

Employer may always be liable for her own negligence in selecting the employee or independent contractor. This is not vicarious liability.

Question 54

Partners/Joint Venterurs

Answer 54

Persons engaged in a concert of action are regarded as members of a joint enterprise.

Each partner or joint venturer is vicariously liable for the torts of the others.

A joint venture must have a common purpose (sometimes a common business purpose) & mutual control.

Question 55

Joint and Several Liability

Answer 55

When two or more tortious acts combine to form an indivisible injury, each tortfeasor is jointly & severally liable for the injury. This means that each is liable to the P for the entire damage.

If the injury is divisible, then joint & several liability does not apply unless the tortfeasors were acting in concert.

Question 56

Statutory limitations on joint & several liability in some states where:

Answer 56

1. P more at fault than tortfeasors; or
   
   2. For noneconomic damages.
      In such situations, the tortfeasor is liable only proportional to her fault.

Question 57

Satisfaction/Release/Contribution in J&S liability cases

Answer 57

Satisfaction: When P recovers full payment from a tortfeasor, there is satisfaction, & she may not recover against another joint tortfeasor.

Release: A release is surrender of the cause of action against a party. At common law, such a release against one joint tortfeasor necessarily released the others. A majority now reject that rule. Rather, the claim against the others is reduced by the amount stipulated in the agreement or by the amount of consideration paid, whichever is greater.

Contribution: Adopted in most states, allows a tortfeasor who pays more than her share of damages to have a claim against any other jointly liable parties for their shares. Thus, contribution is a device for apportionment.

Question 58

Methods of apportionment:

Answer 58

1. Comparative: in proportion to relative fault (majority)
   
   2. Equal shares (minority)

Contribution is not allowed in favor of those who committed intentional torts.

Question 59

Indemnity

Answer 59

Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Available in these circumstances:

1. Right to indemnity by contract
2. Vicarious liability
3. Indemnity under strict products liability
4. Identifiable difference in degree of fault
	a. Retailers who negligently rely on product’s condition may receive indemnification from manufaturer who negligently manufactured it.
	b. Secondary duty: one with primary duty may recover from one with secondary duty
	c. Active/passive: one who is passively negligent may recover from one who is actively negligent.

Most states with comparative negligence systems reject indemnity in degree of fault situations, instead simply applying comparative negligence.

Most states now use a comparative contribution system based on the relative fault of the tortfeasors.