Torts II Flashcards
Four exceptions to contributory negligence
- D engaged in intentional, reckless, or wanton acts
- Last Clear Chance Doctrine
- D has a duty under statute or common law to P from P’s own risky conduct
- P has no duty and/or has a right
Comparative negligence
P’s negligence limits D’s liability proportionally
Pure comparative negligence
P can recover no matter how great P’s negligence is
“Greater than” comparative negligence
If P’s fault or negligence is greater than the D’s then P is barred from recovery. Equal to is not greater than.
“Equal to” comparative negligence
If P’s fault is equal to or greater than D’s, then P is barred from recovery
Assumption of Risk
The P may be denied recovery if he assumed the risk of any damage caused by the D’s acts. This assumption may be express or implied.
Express assumption of risk
Contractual agreement via exculpatory clause. Exceptions: contracts of adhesion, public policy, public interest
Implied assumption of risk
- Knowledge of risk: Knowledge may be implied where the risk is one that the average person would clearly appreciate
- Magnitude/appreciation of risk
- Voluntarily encounters the risk
Statute of Limitations
Affirmative defense through which D claims the time period within which the suit should have been brought has run
When does the clock start running for SOL?
- Accrual of injury: the date you suffered the injury
- Discovery rule: the date they discovered or should have discovered the harm
- Continuing negligence: after the last injury suffered
Spousal immunity
Spousal immunity has been abrogated, spouses may now maintain a tort action against the other
Parental Immunity
General rule is that parents have immunity, but some jurisdictions have abrogated- if parents want to claim immunity, then they must prove that they were acting within the scope of ordinary parental discretion and there was no actionable duty to supervise
Step-Parent immunity
General rule is that no step-parent is automatically immune solely by virtue of marriage to the child’s parents.
Exception: in loco parentis- financially support the child per common law requirement and duty to support as a natural parent
Charity Immunity
General rule is that they are liable for it’s negligence and for the negligence of it’s employees acting within the scope of employment
State Government immunity
General rule is that a state and its government agencies are not subject to suit without the consent of the State (which has waived immunity in most instances)
Local government immunity
General rule is that local governments do not enjoy immunity, including villages, towns, municipal corporations
US government immunity
General rule is sovereign immunity.
Public officers immunity
General rule is that they are not immune from tort liability. A public officer acting w/in the general scope of his authority is immune from tort liability for an act or omission if he was engaged in exercise of discretionary function or if he was not negligent in the performance of his responsibility
Duty of Care: Privity of Contract
A P who lacks privity of contract with D may not sue D based on negligent performance of a contract between D and a third party
Duty of Care
General rule is to act as a reasonable person. A failure to act/omission to act a reasonable person constitutes a breach
Owners and Occupiers: Outside the premises
Natural conditions
Common law: no duty, no liability
Modern: Duty of reasonable care if: (i) possessor knows of risk or if risk is obvious, (ii) for property adjacent to public walkway landowner has no duty of care for risks they did not create
Owners and Occupiers: Outside the Premises
Artificial Conditions
Common law: duty of reasonable care (to act as a reasonable person)
Modern: duty of reasonable care
Owners and Occupiers: Outside the Premises
Urban/Rural distinction
Common law: Urban leans towards duty, rural leans away from duty
Modern: reasonableness is based on facts rather than geographical location per se
Owners and Occupiers: On the Premises
Trespassers
Common law: Before a trespasser is known, there is no duty. But a duty may exist or be owed to a trespasser if they have knowledge of presence; duty to try to avert injury or act carefully under the circumstances
Modern: duty to act as a reasonable person under the circumstances
Owners and Occupiers: On the Premises
Flagrant Trespassers
Common law: same as regular trespassers
Modern: duty not to act in an intentional, willful, or wanton manner. If the flagrant trespasser is imperiled and helpless, or unable to protect self, then there is a duty to act as a reasonable person
Owners and Occupiers: On the Premises
Invitees
Common law: duty to keep premises reasonably safe
Modern: merges invitees and licensees, duty to keep reasonably safe
Owners and Occupiers: On the Premises
Licensees
Common law: duty to warn guest of dangers unknown to guest and known to possessor
Modern: merges licensee and invitee, duty to act reasonably
Owners and Occupiers: Rowland
Merges all the categories: owners owe all entrants a duty of reasonable care
Owners and Occupiers: Restatement
Merges invitees and licensees, and trespassers. Treats flagrant trespassers differently
Contributory negligence
If the negligent conduct of the plaintiff is a cause of plaintiff’s injuries, the plaintiff is barred from recovering from defendant even though defendant’s negligent conduct also caused plaintiff’s injuries
Last Clear Chance doctrine
P’s claim is not barred when P is contributorily negligent if P can establish D had the last clear chance to avoid harm
Vicarious Liability
When one person commits a tortious act against a third party, and another person is liable to the third party for this act. P looks to the actor who committed the tort, and looks up the chain to see if anybody could be liable for the tort
VL: Respondeat Superior
Employer/employee: an employer will be vicariously liable for tortious acts committed by their employee if the tortious act occurs within the scope of the employment relationship
Frolic (scope of employment)
An employee is on a frolic if the pursuit of the employee’s personal business is a substantial deviation or an abandonment of the employment, and the employer is not liable
Detour (scope of employment)
An employee takes a deviation if it is sufficiently related to the employment to fall within its scope. If the deviation was minor in time and geographic area, the employer will be liable
Factors to determine whether deviation is slight or major: TWINEF
(1) employee’s intent
(2) nature, time, and place of deviation
(3) time consumed in the deviation
(4) work for which the employee was hired
(5) incidental acts reasonably expected by the employer, and
(6) freedom allowed the employee in performing his job responsibilities
Going and coming rule (scope of employment)
Employer liability is suspended from the time employee leaves his job until he returns. An exception to this is when an employee endangers others with a risk arising from or related to work (foreseeability).
VL: Independent Contractor
In general, a principle will not be held liable for tortious acts of an independent contractor
To determine whether one is an independent contractor:
Depends on the control exercised by the person who hired them- the less control there is, more likely to be an IC
Independent Contractor Exceptions:
- Non-delegable duties
- Apparent authority: D represents expressly or impliedly that the IC was an employee, then D is VL
- Inherently dangerous activities: whether the act carries a peculiar risk of harm that calls for more than ordinary precaution
- Illegal activities
VL: Joint Enterprise
Where D and the person who commits the tort are engaged in a joint enterprise, the D is VL
Joint Enterprise Elements (PACE)
- An agreement, express or implied, between members of the group
- Common purpose to be carried out by group
- Pecuniary interest in the purpose
- Equal right in control of the enterprise
VL: Bailments
The bailor is not vicariously liable for the tortious conduct of his bailee
VL: Imputed Contributory Negligence
Limited to employer/employee relationship: negligence of employee can be imputed to employer and therefore bar employer from recovering from the third negligent party