Torts Rules and Elements

Vicarious Liability/ Respondeat Superior

Elements:

1) a formal relationship must exist

2) employee must be acting within scope of employment

General Rule: Employer is vicariously liable for torts committed by an employee within the scope of the employment relationship

Frolic vs Detour (Vicarious Liability)

Frolic:

Major Deviation (Employer is not liable)

Ex: deciding to skip work for a personal trip and take the company car on a road trip ←— no work relation

Detour:

Minor Deviation (Employer is liable)

Ex: short break during work hours and hit a car with the company car

Intentional Tort Exception (Vicarious Liability)

1) force is authorized by the job (bouncer)

2) friction is naturally generated by the employment (bill collector)

3) employee is acting to further the employer’s business (removing rowdy customer)

Independent Contractor (Vicarious Liability)

Principle generally not liable because the contract control the manner in which the work is performed

Exceptions:

1) inherently dangerous activities

• tasks involving high risk such as blasting dynamite

2) nondelegable duties

. duties held for publich policy reasons such as keeping a buisness premises safe or maintaining a vehcile’s safety

Employee v Independent Contractor (Vicarious Liability)

Employee:

if the employer controls the process and procedures used to achieve the results, the worker is likely an employee

Independent Contractor:

if employer only dictates the end results, the worker is likely an independent contractor

Automobiles (Vicarious Liability)

General rule is car owner is not vicariously liable for drivers torts

Some states impose liability if driver is immediate family member or driving under owners consent

Bailment: not generally liable (negligent entrustment)

Parent: usually not liable but modernly can be liable up to a certain amount

Capacity: does not matter as long as they intended to do the action

Tavern Keeper. (Vicarious Liability)

c/l: no liability for cutstomers drunken torts

modern: “dramshop act” which imposes liability

other states impose liability w/o dramshop based on ordinary negligence

Divisible v Indivisible Injuries (Joint & Several Liability)

Divisible: injuries are discrete and can be traced to a specific D, each D is responsible for only their harm

Indivisible: multiple acts combine into one single harm

Joint and Several Liability

P can sue and obtain full amount of damages from any one jointly and severally liable D, regardless of that D’s % of fault

Several Liability (Joint & Several Liability)

P may only recover a D % of fault, if D cannot pay then P will b ear the loss and cannot force others to pay the shortfall unlike in joint and several liabilitgy

Release (Joint & Several Liability)

surrendering one claim against a party does not release all others, instead the claim against the remaining parties is reduced by the stipulated agreement amount or consideration paid

When is Joint and Several Liability usually applied (Joint & Several Liability)

Concert Acts: when multiple D’s act together to cause an injury

Intentional Torts: all intentional tortfeasors are jointly and severally liable for all resulting harm

Contribution (Joint & Several Liability)

allows a tortfeasor who pays more than their share to claim the difference from other jointly liable parties

*not allowed on intentional torts

Indemnity (Joint & Several Liability)

shifting entire loss (100%) from one tortfeasor to another

Indemnity available circumstances (Joint & Several Liability)

1) right to indemnity by contract

2) vicarious liability

3) strict product liability

4) identifiable difference in the degree of fault

a. retailers

b. secondary duty

c. active/passive

Satisfaction (Joint & Several Liability)

occurs when P recovers full payment from one tortfeasor; the P may then not recover from any other joint tortfeasor

Land Occupier Duty Statues (L.O.D)

Invitee (Highest duty)

• official/business relationship

• duty owed: exercise reasonable care

Licensee (medium duty)

• person on land for their own purpose/business rather than D’s benefit

• duty owed: warn of known concealed dangers

Trespasser (lowest duty)

• duty: non owed

• exceptions

  • traps- cannot set deadly traps

  • habitual/known trespassers - warn/make safe concealed dangers

  • attractive nuisance doctrine

Attractive Nuisance Doctrine (L.O.D)

Duty of reasonable care if all elements are met:

1) attracted onto land by dangerous condition

2) D knows (or should know) children are likely to trespass and encounter dangerous artifical condition

3) condition creates unreasonable risk of serious harm or death

4) children are too young to fully appreciate the risk

Natural v. Artificial Condition (L.O.D)

Natural Condition

• no duty

• exception:

  • D owes duty for decaying trees next to sidewalks/streets in urban areas

Artificial Condition

• no duty

• exception:

  • unreasonably dangerous conditions

  • duty to take precaution to protect passerby

  • duty to control conduct of others on the property to avoid unreasonable risk of harm to others off property

Landlord Duties (L.O.D)

modernly:

• common area defects

• must warn of dangerous, concealed conditions

• covenant to repair

• absent a convenant repair where landlord elects or promises to repair & does so negligently or fails to do so

• premises leased or admission to the public

Breach (L.O.D)

must evaluate under both traditional and Rowland v. Christian

traditional: look strictly at P’s status

Rowland v. Christian

breach: if D failed to exercise reasonable care to anyone on the land, treating status as only one factor

Cause-in-Fact and Proximate Cause (L.O.D)

both determined via ordinary negligent rules

if you argued alternative statuses for P that yielded different breaching conduct, analyze causation separately for each type of breach

Cause-in-Fact Ordinary Negligence Rule (L.O.D)

“But-for” test

• injury would not have occurred but for D’s negligent conduct

Substantial Factor (more than one cause)

• was D’s conduct a substantial factor in brining about the injury?

Proximate Cause Ordinary Negligence Rule (L.O.D)

Foreseeability Test

• is the type of harm suffered by P a foreseeable result of D’s negligence conduct

Intervening Acts

Superseding Acts

Damages and Defenses (L.O.D)

determined as in ordinary negligence

Eggshell Skull Rule:

D is liable even for pre-existing injuries/conditions

Trespassing Animals (Strict Liability Animals)

owner is strictly liable for

• reasonably foreseeable damage done by a trespass of their animal

Wild Animals (L.O.D)

owner is strictly liable for

non-trespass injuries caused by wild animals that result from a dangerous propensity that is typical of the species

P needs to have done nothing voluntarily or consciously to bring about the injury

Injury must be from the animals “wild” nature

Domestic Animals (L.O.D)

owner may be strictly liable if

the owner has knowledge of the particular animals dangerous propensities (even if they have never bitten anyone)

*if owner knew or had reason to know

Liability Status by P (L.O.D)

Licensee & Invitee: wild or dangerous animals liability will attach

Trespasser: P must prove negligence

Vicarious Dogs as Watchdogs (L.O.D)

may create liability even for trespassers under an intentional tort theory

(no deadly force to protect property)

Abnormal Dangerous Activities Rule (ADA)

Rule: A D who engages in an abnormally dangerous (or ultrahazardous activity) is held strictly liable for any damages that proximately result from that activity, regardless of the level of care exercised

Requirements to be classified as an ultrahazardous or abnormal dangerous activity (ADA)

1) activity creates significant risk of serious harm; AND

2) risk cannot be eliminated by the exercise of reasonable care; AND

3) activity is not common in the community

Balancing Test (ADA)

if utility outweighs danger → negligence is the appropriate standard

if danger outweighs utility → strict liability is utilized

Six Factors Courts Consider (ADA)

1) Likelihood of Harm

2) Gravity of Harm

3) Safety Potential

4) Common Usage

5) Appropriateness of Location

6) Value to Community

Misrepresentation Rule (Misrepresentation)

Rule: To establish a claim for intentional misrepresentation (fraud), the P must prove misrepresentation, scienter, intent, causation, justifiable reliance, and damages

Prima Facie Case Elements (Misrepresentation)

1) Misrepresentation (false statement) made by D;

2) Scienter (D knew the representation was false);

3) Intent to induce P’s reliance on misrepresentatoin;

4) Causation (actual reliance)

5) Reliance was justifiable; and

6) Damages

Opinions (Misrepresentation)

Generally opinions are not actionable

Exceptions:

1) D has superior knowledge; or

2) statement of law by a lawyer or statements of law that imply the existence of false facts; or

3) statements of present intent, where D has control over future events

Failure to Disclose a material fact (Misrepresentation)

Failure to Disclose a material fact is not actionable unless:

1) fiduciary relationship; or

2) D is selling real property and knows P is unaware of and cannot reasonably discover material information; or

3) D speaks and their utterance decieves P (they must inform P of true facts)

active concealment of a material fact is always actionable

Scienter (Misrepresentation)

Requires knowledge of falsity or reckless disregard as to the truth or falsity of the statement

• if D lacks scienter (they honestly but mistakenly believed the statement), D cannot be held liable for intentional misrepresentation, but may be liable for negligent misrepresentation

Reliance (Misrepresentation)

D must intend to induce reliance by P, or a specific class of persons to which P belongs to

Third-Party Reliance: liability may attach if D makes a misrepresentation to a third party, and P (another third party) relies on it, provided D could reasonably foresee that P would have such reliance

Damages (Misrepresentation)

P must have suffered actual pecuniary loss

Negligence Misrepresentation (Misrepresentation)

1) misrepresention made by D in a business or professional capacity;

2) breach of a duty toward particular P;

3) causation;

4) justifiable reliance; and

5) damages

Interference w/Business Relations Rule (IBR)

To establish a claim for interference with a contract or with a prospective economic advantage, the P must prove the following elements:

1) valid relationship/expectancy

2) knowledge

3) intentional interference

4) damages

Intent Requirement (IBR)

D must possess the requisite intent to interfere

Negligence interference: most courts do not recognize negligent interference as a standalone tort

Exception: negligent interference may be actionable if it occurs in combination with some other tort such as negligent misrepresentation

Privilege (IBR)

An interferer’s conduct may be privileged if it ocnstitutes a proper attempt to gain business for themselves