Torts 38-52 Flashcards
Negligence Defense
When does Assumption of Risk apply?
If a plaintiff:
Voluntarily assumed;
A known risk.
May be express (by agreement) or implied.
*A professional rescuer or fireman CANNOT bring a cause of action against someone whose negligence caused their injuries.
Priority: HIGH
What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?
Zone-of-Danger Case: D’s negligence, created foreseeable risk of injury, P is in zone of danger, and P manifests physical symptoms.
Bystander Claim: D’s negligence, P is contemporary witness to injury to close family member, and P manifests physical symptoms.
Rare Egregious Situations: Pre-existing relationship between P and D, and negligent act foreseeably causes distress.
Priority: HIGH
Vicarious Liability
Employee
vs.
Independent Contractor
Employee: Employer controls manner/means of the employee’s performance of work. Employer IS vicariously liable for negligent acts of employee (within scope or employment).
Independent Contractor: A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally NOT liable for torts committed by a contractor.
Priority: Medium
Vicarious Liability
What determines whether a person is an Independent Contractor or Employee?
Whether the principal had the right to control the manner and method in which the job is performed.
(If the principal had substantial control, it’s likely the person will be deemed an employee).
Priority: Medium
Vicarious Liability
Under respondeat superior, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.
When is an employee deemed to be acting within that scope?
When:
Performing work assigned by the employer; OR
Engaging in a course of conduct subject to the employer’s control.
**Conduct is not outside the scope merely because an employee disregards the employer’s instructions.
Priority: HIGH
Vicarious Liability – Respondeat Superior
Acts Within Scope of Employment
vs.
Acts Outside Scope of Employment
Within Scope: When preforming work assigned by the employer OR engaging in conduct subject to the employer’s control.
Outside Scope: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.
Priority: HIGH
Vicarious Liability
What causes an employee’s Intentional Torts to be considered within the scope of employment?
The Act was:
specifically authorized by the employer;
driven by a desire to serve the employer; OR
the result of naturally occurring friction from the type of employment.
Priority: HIGH
Vicarious Liability
In what situations is an employer still liable despite the doctrine of respondeat superior being inapplicable?
When:
The employer intended the conduct or consequences;
The employer was negligent in selecting, training, retaining, supervising, or controlling the employee;
The conduct involved a non-delegable duty to an injured person with whom they had a special relationship; OR
The employee had apparent authority, their appearance of authority enabled them to commit the tort, and a third-party reasonably relied on that authority.
Priority: N/A
Vicarious Liability
When will a principal be liable for torts committed by an Independent Contractor?
If:
The contractor is engaged in an inherently hazardous activity;
The duty owed by the principal is non-delegable; OR
Through the doctrine of estoppel:
The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, and the third-party suffered harm as a result.
Priority: N/A
When is a defendant entitled to Indemnification?
When the defendant is a passive tortfeasor AND seeks to assert his claim against an active tortfeasor.
The defendant is entitled to recover the FULL amount he paid the plaintiff from the active tortfeasor.
*Indemnification is available in vicarious liability situations or by contract.
Priority: N/A
When is a defendant entitled to Contribution?
A joint tortfeasor may seek contribution from other joint tortfeasors if he pays more than his percentage share of liability.
*The amount recoverable is based on PURE comparative fault – a defendant CANNOT recover from another more than that person’s percentage of fault.
Priority: N/A
What is the Doctrine of Alternative Liability?
It allows the jury to find ALL defendants liable if:
Multiple defendants are deemed negligent,
But it’s unclear which one caused the plaintiff’s injury.
Priority: N/A
What is the Doctrine of Joint Enterprise?
It allows the negligence of one defendant to be imputed to other defendants if:
Multiple defendants were engaged in a common project or enterprise; AND
All defendants made an explicit/implied agreement to engage in tortious conduct.
Priority: N/A
What is the Doctrine of Market Share Liability?
ALL manufacturers are liable to their proportional share of the market when the following factors are present:
All the named Ds are potential tortfeasors;
The harmful products are identical and share the same defective qualities;
P is unable to identify which D caused the injury; AND
Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.
Priority: N/A
What is the liability of multiple defendants in a jurisdiction permitting Joint and Several Liability?
If multiple defendants are the proximate cause of a single indivisible harm, then the plaintiff may recover the ENTIRE amount of his damages from ANY single defendant.
Priority: Medium
