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Torts OutlineIntentional TortsAll are fault basedIntentActual intentSubstantially Certainty: the defendant knew the probable outcome of their actions will cause harm or offensive contentIntent does not require knowledge of the specific nature of the harm, only knowledge you need is that you are doing it and that it may cause some harmBased on objective action of the defendant, not their subjective knowledgeHow would a reasonable person actMistake does not negate intentTransferred intent Between victims and between intentional tortsInsanity not a defense for an intentional tort with few exceptionsPlaintiff has burden to prove intentIf medical problem, not liable unless previous knowledge would happenAbsolute liability: abnormally dangerous activity, always liable regardless of negligence Assault and BatteryBattery is touching another in angerContext mattersBattery requires intent to commit harm, actually committing contact, and is not normal contactExtends to things you are holdingAssault is the threat of harmFear of imminent harm or offensive contactNeeds to have intentEVERY BATTERY DOES NOT INCLUDE AN ASSAULTIntentional Infliction of Emotional Distress (IIED)Not recognized in every jurisdiction and very hard to proveD intentionally subjected another to mental distress without intending to cause bodily harm would be liable for resulting bodily harm if D should have foreseen the mental distress could cause such harmNeed intent for the extreme and outrageous act beyond all bounds of decency tolerated in a civilized society and severe emotional distress beyond what a reasonable person would be able/expected to endureif more sensitive, then not severe enough for IIEDFalse ImprisonmentNeed intent, direct restraint of the physical liberty of another, and they need to be aware they are falsely imprisoned Liberty could include clothes, no phone access, physical restraints, locking in room, taking mobility equipment, returning victim to the property against their willDoes not apply when adequate legal justificationIf false arrest, then false imprisonment Person needs to be aware at the time of the false imprisonment and not there voluntarilyFalse pretenses do not mean false imprisonmentIf unclear if can leave safely, but a reasonable person would see a risk, the false imprisonment Restraint of a loved one is restraint of the person Trespass to LandEven of no damages, can still be trespassIf no damages, may be awarded nominal damages (~$1)Unauthorized entry on to anthers land that ruins the peaceful enjoyment of the propertyMistake not a defense What is reasonable in the airspace is considered for trespass of flying objectsIf authorization expires, or beyond time or purpose permitted, then trespassTypes of property:Real: land or buildingAbout who possess the land, not ownerRenter has the rights, not landlordChattel: things that are not real propertyThings you ownNominal damages all the way to liability for death Trespass to ChattelWhen someone damages or temporarily dispossesses you from using the chattelElectronic signals are chattelNot all chattel has to be tangibleCan get nominal damages, personal injury damages, or bodily harm damages ConversionInvolves the permanent dispossession or destruction of the chattelDoes not include sentimental value, but does include non-tangible to others valueNo bodily harm damages to be collectedCan only get money to replace the itemIf other injury, better to have trespass to chattelsPrivileges for Intentional Torts ConsentConduct or verbal consent to an action prevents an intentional tortMost common privilege General customs of a game do not make consent to an intentional tortIf not urged medical care, then need explicit consentLife or death necessities imply consentIf information is withheld that would cause there to be no consent, then there is no consentIf consent is induced by fraud or misrepresentation as to a collateral matter, but not an essential character of the act, then the consent will not be invalidated Misrepresentations invalidate consent Self-DefenseRight to defend self, family, or others using reasonable forceRarely can use deadly force unless in home or place of business and would need continued aggression Based on proportional force Response has to be connected to the actions of another personHome and place of business related to trespassCannot use lethal force against authorized entryBut nonauthorized entry may justify lethal force If turning their back and running away, it becomes a battery to the trespasserMistakeMay give rise to negligence claim Need to have reasonable belief that the person had a malicious intentDefense of OthersSituations defending another can use same amount of force as in self-defense In some jurisdictions, the reasonable belief defense appliesBut the majority rule is it does not unless it is defense of family Reasonable belief that your intervening is necessary to protect someone Defense of PropertyDo not have right to use force that would cause death or grieves bodily harm when defending property Needs to be short of significant bodily harm to be okayRecovery of PropertyForceful resistance of person taking the property allows for reasonable force to be used to recover it. If too much force, even if right to repossess, then become the aggressor in a battery. Only have right to repossess under reasonable force if in fresh pursuit.If not in fresh pursuit or person reaches final destination, need to resort to legal processFresh Pursuit needs to be within a reasonable vicinity and have reasonable belief to stop suspectProfiling is NEVER reasonable beliefReasonable force is force reasonable under the circumstances to recover the property NecessityDefense of public necessity prevents P recovery of damagesPublic vs private necessityBoth no trespass because necessityPublic necessityActing in a way necessary to protect public interest No need pay damages and trespass is privilegedPrivate necessity Acting in a way to protect your or our company’s interestNeed to pay damages even though trespass is privilegedIn most jurisdiction, little difference because by statue, there is a duty to compensate even if public. Authority of LawArrest under a warrant signed by a court or without a warrant then no false imprisonment Officer only liable if acting improperly by using excessive forceOnly valid warrant if officer carries it outWithout a warrant, then must be to prevent a felony or breach of the peace, reasonable grounds for believing a felony occurred, fresh pursuit after offense committed in offer’s presence, misdemeanor committed in officer’s presenceEven of lawful, liable for excessive force DisciplineNeed to consider:Nature of the punishmentConduct of the studentAge and physical condition of the studentMotive of the instructorJustificationCatch-all privilege Need to protect people and propertyGenerally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custodyWhen successful, involves someone in-charge over people or property where they have discretion and destruction occursNegligenceNegligence FormulaNeed to have all:DutyBreach CausationDamagesBreach of Duty is negligenceIf no damages, call “negligence in the air” and is not actionableFor tort of negligence to exist, negligence has to cause damages that can be shownDutyReasonably prudent person standard Knows what is intrinsically dangerous and has a duty to warn another to stop dangerous behaviori.e. driver has a duty of care to passengers because foreseeable that one could be injured if, through inattention or otherwise, the driver can be in a crashTo determine negligence, need to look at the character and location of the premises, the purpose of use, the probability of injury, the precautions necessary to prevent injuries and the relations such precautions bear to the beneficial use of the premises Reasonably Prudent [professional/company] when not a person individuallyNo requirement to use technology that is not readily available Likelihood(possibility) greater than the burden, then liable [ B<PL]Use cost benefit analysis involves not taking a precaution and that failure to adequately take that precaution causes the harmFocus on what the D knew and what a reasonable person would have done in that circumstanceA custom by itself does not demonstrate negligence in itself but is good proof of it When a custom is below a reasonable person standard, then not convincingWhat is reasonable depends on the circumstancesEmergency circumstances more lax than regularReasonable person with a disabilityChildren doing adult activities held to adult standardMental disability standard makes you liable, even if taking medicationIn most states, even if took medication and it just didn’t work, still would have been liable because mental disability and not physicalCourts continue with this rule because want to grant relief to victimIf no warning and suddenly happens, then not liableProfessional standards of care Reasonably prudent [professional]Expert testimony to determine if reasonably prudent professionalLocality RuleThe duty of care is based on the degree of reasonable care and skill expected of members of the profession under the same or similar circumstances Only used for general practitioners in medical fieldSpecialist are held to a national standard Other professionals are held to a national standard, except lawyers where state bars differ Informed ConsentNeed adequate information about the treatment, available alternative and the collateral risks If don’t have, then no consentRelying on a custom that violates the law, then assumes the riskElements of informed consentFailure to inform patient of material risk they would have wanted to know about Had the patient known about the martial risk, would not have undergone treatment or would have sought another doctor The result that they were not informed about did happenThe harm has to be the harm you were not informed aboutFailure to give full information means no informed consent Need to disclose personal interests that may affect judgementMedical MalpracticeLimited damages, cause of actions, and accesses to certain claimsMost problems come from frivolous suits by lawyersRules of LawStandards from courts that if violated then negligence but are generally disfavoredIf fail, still have general negligenceSometimes the violation of a rule of law, because of the facts, is a breach of duty Negligence Per SeViolation of a statute is a violation of a duty but not every statue can be usedCreates a rebuttable presumption of negligence Even in cases where a statute does not give rise to negligence per se, still have a claim for negligence under a reasonableness standardNegligence per se is a short cut to establish breach of dutyTo evaluate whether the statute is appropriate for creating a legal standard that could impose tort liability, courts look at:Is the plaintiff a member of the class of persons the standard or the statute was designed to protectWhether the harm caused to the plaintiff was the sort of harm the statute was designed to protect against. If statue doesn’t protect against the kind of harm caused, then no negligence per seLook at motivation of the statute If duty too board, then statue not appropriate to create a dutyIf negligence per se established, then you’ve established negligenceNegligence per se when established is an automatic showing of negligence, assuming it is an unexcused violation of the statuteIf an excused violation, do not met standard for negligence per seNegligence per se establishes a prima facie case for negligenceYou’ve met the elements of negligence, but can be rebutted by evidence showing you were not negligent, but without the evidence, presumed that you wereThe best evidence is that it is an excused act under the statuteProviding evidence that they were not negligent is used to rebut the presumption of negligence3 factorsStatute that could appropriately give rise to a tort dutyDesigned to protect a class of people the plaintiff was a part ofThe harm was the kind the statute was designed to protect against If an unexcused violation of the standard, then negligence per se is negligence Still have to show causation and damagesAn excused act of negligence per se is differentThe difference only arises when there is adequate evidence to rebut the presumption of the prima facia case and that is not just an excuseIn jurisdiction that use a rebuttal presumption for negligence per seNeed evidence to prove a violation of a dutyP has burden of proof for all, aspects of negligenceBreach of duty can be hard to showIf D acted reasonably, the no breach of dutyBurden shifts in negligence all the timeIf the way D does business is negligent, then no need for P to prove because business practices are the proof P needs to be able to prove that the DHad actual or constructive knowledge of the conditionThe condition posed an unreasonable risk or harmDid not exercise reasonable care to reduce or eliminate the riskFailure to use such care proximately caused P’s injuries Res Ipsa Loquitur “the thing speaks for itself”The act would not arise in the absence of negligenceNo need to show a breach of duty, but need to show causationIf other cause, then may not be negligence To be liable, D must have exclusive control overTime between negligence and injury must be closeChanged standard from “exclusive control” to “other responsible causes including third parties or P’s own conduct” Even in Res Ipsa case, need expert testimony to show that this would not have happened in the absence of negligence Usually don’t need an expert for Res Ipsa cases, but sometimes you doCan still show common law negligence Most jurisdiction said you have a duty to eliminate other causes, like showing exclusive control by the defendantExclusive control will meet the no other causes standardOr exclusive control hard to show, so show no other responsible causesNeed to show the other cause is not the plaintiff’s own behavior On Exam: need to know the standard for Res Ipsa is that it is not the sort of thing that would happen without negligence, may need expert testimony, the plaintiff’s action can be eliminated as a basis for the negligence, and exclusive control by the defendant If show Res Ipsa, showing an inference of negligenceUnlike negligence per se, just an inference of negligenceCausation Need both cause in fact and proximate cause Cause in FactSine Que Non: an essential condition; thing that is absolutely necessary The negligence needs to be a substantial factor in the harm causedCause in fact, factual causationUsually easy to establishProof of Causation Injury must be caused by negligence Speculation not enough to establish cause in factJust because something might have contributed to the outcome does not mean that the D’s conduct is not cause of damagesP has burden, so if fails to establish one element, then D winsIf event would not have occurred BUT FOR the conduct, then cause in factIf using science to show cause in fact, must be good scienceTheory or technique employed by expert is generally accepted in the scientific community Peer reviewed or publishedCan be or has been testedKnow or potential error rate is acceptableConcurrent CausesMore than one thing that causes an injury and how it relates to cause in fact, and both can be a cause in factWhen separate acts of negligence combine to produce directly single injury, each tortfeasor is responsible for the entire result, even if action alone might not have caused it Substantial factor: a material factor in plaintiff’s injuryProblems in Determining Which Party Caused the HarmWhen unknown which defendant caused the injury, burden shifts to the defendants to show how did itWant to give plaintiff a way to recover so shift burden to defendant Burden shifts only for one elementDES Cases (Diethylstilbestrol (DES) is a synthetic estrogen)A lot of manufacturers, so special rules Unless plaintiff can show whose drug the mother took, no cause in fact in some jurisdictions Enterprise liability: the burden doesn’t shift, as long as the plaintiff show their mother took DES, they meet their burden of proof and every DES manufacturer is liable and can divvy it up however they want Not really used, and doesn’t give defendants an out of they can show they aren’t liable Market-Share Liability: Shifts burden to the defendants and they are responsible for their share of the marketDefendants can get themselves out of it by showing they were unable to be the cause because they were not present in that marketRedistribute the percentage to other defendants Cannot collect from businesses that went out of business, but plaintiff could show that it couldn’t have been themOnly DES litigation, plaintiff shows mother took DES, then negligence established, causation burden shifts to defendants and are liable base on market share unless they can get themselves out of it, use model that adjust for company that is out of business to be redistributed the amount to the other companies so plaintiff gets full amount Proximate or Legal CauseOnce the plaintiff shows the defendant breached a duty, we need to show the damages were caused by that negligence Proximate causes about indirect causesProximate cause is something without which the event would not have happenedNeed to have a natural and continuous sequence between events Proximate cause is used to cut causality off by the courtProximate is the legal causation, cause in fact is the factual causation Proximate cause relates to the cause of the injury, not the severity of the injuryEgg-shell skull: take the P as you find him, so liable for aggravating previous injury Foreseeability is key Don’t have to foresee the specific harm from the negligent act, only that harm could be causedNeed evidence of foreseeability Reasonably prudent person could foresee harmForeseeable in time and spaceReasonableness is a question for the juryIntervening, supersedingCausation can be intervening but not always supersedingIntervening is something that interacts with the defendant’s negligence to cause a harm (unforeseeable, extraordinary, independent of D’s conduct) If superseding, no proximate cause, cuts the causal chainIf not superseding, then there is proximate causeCriminal behavior cuts the causal chain, as do intentional torts by third parties Suicide is generally not going to allow for proximate causeUsually cuts the causally chain as it is viewed as an intervening, superseding cause The irresistible impulse exception: Physical Trauma to the brain that causes this impulse so its is not in intervening superseding causeRescue Doctrine: Allows an injured rescuer to sue the party which caused the danger requiring rescue in the first place“danger invites rescue” Rescuer still has to show the defendant was the proximate cause of the injuriesNeed to prove:Defendant was negligent to the person who needed to be rescued and such negligence caused the need to be rescuedThe need to be rescued was immediateA reasonably prudent person would have concluded such peril existed and the person needed to be rescuedThe rescuer acted with reasonable care in the rescue The conduct of the negligent defendant, what the intervening cause is, and what the harm of the plaintiff is are all relevant to determine the intervening, superseding cause Public policy has blocked liability were torts policy would normally apply itSecond and Third Generation DES CasesPublic policy not to expand liability to second generation DES casesWhile may be a cause in fact, not a proximate cause Responsibility for Damages Joint and Several Liability – 2 people’s concurrent negligence contributed to P’s injury may be held liable for the full amountNOT for intentional tortsAll defendants must be a proximate case of plaintiff’s injuriesAllows P to recover from all, some, or one of the tortfeasor’s responsible for P’s injuriesAdopting comparative negligence did not get rid of joint and several liabilityInjury is indivisible when caused by multiple people so all of those involved in cause the injury are responsible for itIn most jurisdictions, comparative negligence can offset liabilityContributory NegligenceP who is guilty, even a little bit, is barred from recoveryComparative NegligenceDo not hold defendant who is less liable than the plaintiff jointly and severally liable So if plaintiff is 25% responsible, Defendant 1 is 60% liable, and defendant 2 is 15% liable, plaintiff can only recover from Defendant 1Any defendant less negligent that the plaintiff, then they are not jointly and severely liable Can only get 1 satisfaction, no more than 100% allowed to recover Classic covenant not to sueCovenant not to sue is an agreement not to sue because of a settlementAlso includes a release of liability Used to be release of one was release of all, but not the case anymore Need to include language that reserving the right to sue others Contribution- portion of the damagesD may bring in a party who may be liable for all or part of the damages, even if P does not bring them inWhen a tort is committed by the concurrent negligence of two or more persons who are not intention wrongdoers, then contribution should be enforced Depends on joint liability and can only get for amounts you are not liable forOnly for a portion of the damagesIndemnity - full amount of damagesFor all of the damages Would be a separate suitApportionment of DamagesThe initial defendant is only responsible for the harm from their negligence and anything that is reasonable the result of that negligence, not for any subsequent harm by others The second defendant is responsible all of the harm including the aggravation of the initial injuryNo exact science, get as close as possible based in the evidence Privacy of ContractMostly deadUsed to need a contract to be able to sue for anything so courts went to great lengths to find implied contracts to give tort damages, but didn’t work well Pure Economic harm: no physical injury, but economic harm causedCannot recover for pure economic lossIs when there is no direct damage to the person or property and the only harm done is an economic harm that is separable from an economic harm caused by the defendant’s negligence Could only recover if there is a contract with the tortfeasorDutyFailure to ActCommon Law: no duty to warn of a dangerous third personUnless the harm is foreseeableUniversities have a duty to warn based in what they knew and when they knew itKnow or had good reason to know is different than foreseeability, higher standardInvitees: on the premise to shop or do business Specific duties, highest standardTake reasonable care to protectMake sure not injured or minimize injury through tings in owner’s control Duty to report when have reason to know family member is dangerous and it is particularly foreseeable Counselors have a duty to report when there is a strong reason to belief that the violence is imminent, and the victim is identifiable Negligent Infliction of Emotional DistressMental distress could be so intense that it could reasonably be foreseen that illness or other bodily harm could be caused and if D did so, would be liable for the negligent inflictionIntent not neededOld physical touch ruleNo need for physical contact to bring NIED claim, but need for traditional physical manifestation of EDBe aware that brain chemistry could also countBystanders The emotional distress needs to be a foreseeable consequence of the D’s activities Need to witness and be closely related, like a close relative, to victim for recoverySuffer some kind of serious emotional distress that would not be suffered as a witness of an injury, but as a specific one related to that victimHyper-sensitivity viewed as abnormal and could not recoverDoes not account for closeness of the relationship, but some jurisdictions doNeed to be present at and aware of even causing the injuryUnborn childNeed to be born before can bring a claim in their name as not to overcompensate No separate recovery for fetuses as too speculative Addressed more by statutes than the common lawDuty to ActIf outside the premise, must know or have reason to know through reasonable methodsIf not reasonable to take the precautions or damage not foreseeable, then no negligence Only have a duty to act if reason to knowTaking inadequate precautions to remedy a know problem is negligence If on notice, duty to actTrespassersCannot purposefully injuryIf trespasser known, then just a duty to prevent harmIf unknown, then no duty owedLicenseeSocial guestsOwner has a duty to warn of hidden dangers which are unknown to the guest that owner has knowledge of and to refrain from purposefully injuring them InviteesOn the premise to do business but do not actually have to buy somethingHighest level of protection, protect using reasonable careCategories are based on location and purpose and can be changedIf go to another location, may be trespasser instead of invitee ChildrenAttractive nuisance doctrine is basically dead Still look at reasonableness based on the totality of the circumstances, including children being present Persons Privileged Regardless of Owner’s ConsentDuty to warn of known dangers and not try to harm For Exam:there is no difference between invitees and licenses as to the status of the individual involved, there is just a duty of reasonable careIf the person is a trespasser, then there is a question of known or unknown and if known, duty to warnMost jurisdictions keep trespassers sperateIf people are regularly trespassing might have a duty to make it safeIf unknown trespasser, no duty No duty to a criminal trespasser Difference between licensee and invitee doesn’t exist except under the old rule Lessor and LeaseeOld common law rule was the lease of a property is essentially a sale for a period of timeGeneral rule is that the lessee has the duty to maintain the property, unlessThere are undisclosed, dangerous conditions know to lessor but not the lesseeConditions dangerous to persons outside the premises Premises leased for admission of the publicParts of the land retained in lessor’s control which lessee is entitled to use If landlord can use, then tenant not liable When lessor contracts to repairNegligence by lessor in making repairsApplies if lessee doesn’t know that repairs were madeDuty of ordinary care is owed by the landlord to persons on the premises with permission because landlords can control major things on the property and therefore the standard of ordinary care appliesLandlord not responsible for tenant’s activities that cause property to be damaged during the lease if it is foreseeable that a crime might occur, the landlord has a duty to make arrangements for security and can offset cost by increasing rentDamagesNominal damages- only available for certain intentional tortsi.e. $1 for trespass to show that they violated your right no damage beyond infringement of your rights for an intentional tortmost often trespass to landCompensatory -compensate for everything (medical bills, to emotional harm, to pain and suffering)Money you get for harms suffered for another’s intentional tort or negligencePunitive- almost never from negligence cases, only if there is a malicious intentmostly from intentional tortssometimes called exemplary damagesdamages above and beyond compensation of the victim used to make an example out of someoneWrongful Death and Survival Survival statutes Old common law, that if either party died, action dies with themEstates cannot bring actionsThese came up to counteract the old ruleSometimes a statute, sometimes a ruleAction survives the plaintiff or the defendant’s deathWrongful DeathMore important than survival statutesD’s conduct caused the death of PImmediately or after some timeCreates an action on behalf of the P’s family to sue D for harm caused by the deathOr if estate never actually sued Separate cause of action then the estate suingWould allow damages that might not exist on behalf of the person who diedAllows compensation for the victims who are left after the death of a person Contributory NegligenceGone in most jurisdictionsIf P negligent at all, then no recovery Last clear chance doctrine: if D had opportunity to avoid the accident after the P no longer could, the D is the one to bear the loss, contributory negligence does not applyP would collect 100%, even though negligent Comparative NegligencePure= P’s negligence could be 99%, and D still pays 1%Purely just percentages of negligence to determine what P can collect 50/50 (no greater than) = as long as P’s neg is equal to or less than D’s, then P can recoverIf 50/50, P can recoverIf more than 50%, then P gets nothing 51/49 (must be less than) = P’s neg must be less than D’sMust be 49% or less to recover If 50%, P cannot recoverOnce a court adopts comparative negligence, exceptions to contributory neg are goneFor Exam: if not expressly told, use pure, all are fair gameAssumption of Risk – unfavored Old common law doctrine, not a favored defenseExpress: contract or release of liability Implied: requires actual knowledge of the particular risk, appreciation of the magnitude, and voluntarily encountering the riskAn affirmative defense merged with comparative negligence Gone in most jurisdictions that adopted comparative negligence For Exam: DO NOT APPLY, only use comparative negligence Only time this applies is when someone acts unreasonablyStatutes of LimitationsLaws that limit amount of time available to file a claimIn most jurisdictions, have 1 year for intentional tortsFor neg, products liability could be 2, 3, or 42 years for neg is commonIf don’t file within the statue, claim is dismissed with prejudice Tolling of the statute of limitationsPostpones the running outTolled = stopped Negligence ImmunitiesAbrogation of an immunityAbolished it Partially abrogated immunityHeavily restricted, but still existsSpousal ImmunityMostly goneOld common law doctrine where wife was legally the husband so would be like suing himselfConcerns were: Disrupting the peacefulness of the home, but if home was peaceful, then they wouldn’t be suing each other any wayOnly tort law gives compensation for injuries, so don’t want to go thru criminal law or divorce Martial disputes could take the appearance of tort claims, but no evidence of these being a problem because they would be considered frivolous claimsFear of collusion, but there are other way to deal with that Parental Immunity Don’t necessarily want to hold parents liable for negligent supervision over their own children Immunity only applies to own kid, not others or a group Does not apply to neglect or abuseHas be abrogated in many jurisdictions In loco parentis= in the place of a parentStep-parents not automatically a parent but also not automatically notSome jurisdictions require adoption Court wants to know the relationship between the parent and the childNot just finances, but also relationshipCourt found no financial support, no real relationship and, first time left with kidLook at relationship between person and the child to determine in loco parentis Vicarious liabilityThe liability for the acts on one party by another Mostly when the negligent person is in the scope of employment Respondeat superior- liability of employer for acts of employee without regard for employer’s actual negligence or how much control they have of the employeeif the employee wholly abandons, even temporarily, the employer’s business for personal reasons, then the act is not within the scope of the employmentGoing-and-coming rule- no respondeat superior liability for ordinary commute to workEmployer cannot be held responsible unless employee was negligentSlight deviation rule- must be determined if employee took a frolic or detour Look at employee’s intent, time and nature, time consumed in detour, work should be doing, incidental reasonably expected, and freedom employed has Detour= slight deviationFrolic= substantial deviation If frolic, then no respondeat superior If D is an independent contractor, the employer will not be liableIf hire an independent contractor, then not liable for their tortsDetermination of an independent contractor or employee based on details such as supervision, dominion, and control over work by the employerCannot delegate certain duties to a third party, but may be able to sue them for indemnity Can delegate the task, but responsibility remains with the ownerGenerally, no vicarious liability for intentional tortsAre exceptions, such as when performing at the instruction of the employer or foreseeable given the nature of the job that the employee will commit an intentional tortStrict Liability – D must pay damages even though D acted neither intentionally or negligentlyCourt imposedMany case with animalsIn most jurisdictions, if keeping a wild animal, then responsible for any damage it does Not normal pets or farm animalsFarm animals cannot roam on others propertyFencing-in: owner of the animals must fence them in or otherwise restrain them or owner is strictly liableFencing-out: if P fenced property, then owner is strictly liable if animal breaks inNeed to show negligence in maintaining the fence See dog bite statutesCommon law has one bite ruleAfter one bite, strict liabilityStrict liability if owner knew or had reason to know animal has dangerous propensitiesIf can’t prove owner knew or had reason to know, then no strict liability A short cut to negligence, don’t need to prove a breach of duty, still have to prove causation and damages Abnormally dangerous activitiesIf something on your land escapes, your strictly liable, even of not negligent, but only if a non-natural (would not expect to be done on the land) use of the propertyNatural use means something that would be expected to be done with the land and then would look at negligence Dangerous, but not Abnormally soNeed to look at:High degree of risk or harmIs the harm going to be greatCan it be protected against with reasonable careExtent to which it is not a common usageInappropriateness of the activity to where it is carried outValue to the community outweighs its dangerousnessIf not abnormal, then no strict liability Activity was so abnormally dangerous, even of not negligence, still responsible for bill if something goes wrongCould still have negligence claim if suing on strict liabilityNeed to look if risk could be avoided with due care because if yes, then less likely to be strict liabilityIf abnormally dangerous, then only responsible for damages that make the activity abnormally dangerous (foreseeable damages) Act of god is an expectation to abnormally dangerous activity AnimalsIf animal known to be vicious by owner, then liableContributory negligence is not a defense of strict liabilityComparative negligence is a defense of strict liabilityProducts Liability First major product liability cases were negligenceRecovery not based on proof of negligence or knowledge of the defectProducts that will be sold to the public without further inspections, are defective, and the injury is foreseeable from the defect, is a breached duty and can be liableNowadays focus on warranty, and not so much negligenceBut could still have a negligence claim WarrantiesExpress warranty based on promises that are relied upon by consumersWhen you buy a product, it comes with an implied warranty that it can be used for the intended purpose and it is in a condition fit for consumer use Strict Liability P does not need t establish an express warrantyManufacturer is strictly liable in tort when an article he placed in the stream of commerce, knowing it would be used without inspection for defects, proves to have a defect that causes injury to a human beingPurpose is to make sure the cost of injuries resulting form the defective product are borne by the manufactures that put the product on the market and not the injured consumers who are powerless to protect themselves Product Defects If defective and put on the market, then will be strictly liable ManufacturingProduct does not conform in some aspect to the from a mishap of the process itself, workmanship, or defective materialsIf can show left the line with a defect and can chow many with the defect, then would need a juryEasiest path to strict liability if can show Risk-Utility Analysis: risk of the product outweighs its useAssessed by what alternatives were available and reasonable care usedDesign Negligence standard with reasonable careA reasonable company would not put a product put that would reasonably cause harmP must show that the product was defectiveRisk-Utility Analysis:Usefulness and desirability to use and the publicSafetySubstitutesD’s ability to make saferP’s ability to avoid damageP’s awareness of the dangersD’s liability insurance Some products are so dangerous, risk always outweighs utilityIf on the market and someone is injured, will always be liable For guns in US: no strict liability for sellersHunting weapons always pass risk-utility analysisGuns and cigarettes are not inherently defective in the USVirtually no utility and risk so great, a firework was found to be inherently defective WarningsStrict liability with underlying negligence elementsOnce they knew or should have known, then strict liabilityNeed to warn against foreseeable misuse Misuse is a defense, but not foreseeable misuse Causes of action for Products liabilityNegligenceExpress and implied warrantyStrict liability Manufacturing defectsDesign defectsWarning defectsProofNeed to be able to prove the claimEvidence by expertEvidence of damaging event occurring in the course of or following the use of the product Or similar products having issues Sold “as is,” then no liability on part of sellerP’s ConductComparative negligence applies to strict liabilityJust because P is negligent, doesn’t mean its misuse that gets rid of liability on the part of manufacturer, use comparative negligence and reduce damages accordinglyComparative negligence is a defense to all products liability Only matter when misuse is not foreseeable Pharmaceuticals Manufacturer is liable for the failure to warn even though P took drug from different entity because of FDA rules about warnings on drugsException to products liability Does not apply to manufacturing defects ................
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