XVIII. Torts: General Considerations
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DOCTRINE OF RESPONDEAT SUPERIOR
Master/employer will be vicariously liable for tortious acts committed by her servant if the tortious acts occur within the scope of the employment relationship.
Frolic and Detour: If the employee's deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment rather than on a frolic of his own.
Intentional torts usually not within the scope unless it is part of the job, ie, bouncer, bill collector, etc.
INDEPENDENT CONTRACTOR SITUATIONS
Normally a principal will not be vicariously liable for tortious acts of an independent contractor, but there are two exceptions:
1. contractor is engaged in inherently dangerous activities; or
2. the duty is nondelegable, ie, the duty of a business to keep its premises safe for customers.
PARTNERS AND JOINT VENTERURES
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the business.
Joint venture -- common purpose (sharing of expenses is highly persuasive) and mutual right of control
OWNER FOR DRIVER
General rule is that owner is not liable for driver, however, under the "family car" doctrine owner is liable for the tortious conduct of immediate family or household members who are driving the car with express or implied permission.
Owner may also be liable for her own negligence in entrusting the car to a questionable driver.
BAILOR FOR BAILEE
PARENT FOR CHILD
No liability at common law, but in most states parents are liable for the willful and intentional torts of their minor children up to a certain dollar amount.
Court may impose liability when child is acting as agent of parent.
Parent may be liable if he negligently allowed child to do something dangerous.
TAVERNKEEPERS FOR INTOXICATED CUSTOMERS
Liability may be imposed based on ordinary negligence principles, ie, the foreseeable risk of serving alcohol to a minor or obviously intoxicated person, rather than using strict liability.
JOINT AND SEVERAL LIABILITY
When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable, meaning that each is liable for the entire damage incurred.
If it's possible to identify who caused what injury, then they will each be liable only for their own damage.
If tortfeasors are acting in concert each will be jointly and severally liable even if the injury is divisible.
SATISFACTION AND RELEASE
If plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a satisfaction. She may not recover further against any other joint tortfeasor.
Release of one of two tortfeasors at common law acted to release the other. Now, the other party is released only to the extent of the amount stipulated to in the agreement or the amount of consideration paid, whichever is greater.
Contribution is a device whereby responsiblity is apportioned among those who are at fault.
Comparative Contribution: contribution is imposed in proportion to the relative fault of the various tortfeasors.
Equal Shares: a minority of states require all tortfeasors to pay equal shares regardless of their respective degrees of fault.
Contribution is not allowed in favor of those who committed intentional torts, even if each of the tortfeasors was equally culpable.
Indemnity by contract is normally upheld where it is a clear intention.
Where someone is held liable by vicarious liability, that person can seek indemnification from the person who actually caused the damage.
Each supplier in chain of products liability has a right of indemnification against all previous suppliers in the chain. The manufacturer is ulitimately liable if the product was defective when it left his control.
INDEMNITY AMONG JOINT TORTFEASORS
Where there is considerable difference in degree of fault among joint tortfeasors, he who is least at fault may be able to recover indemnification from the more wrongful tortfeasor.
SURVIVIAL OF TORT ACTIONS
In most jurisdictions torts that invade an intangible personal interest, ie, defamation, malicious prosecution, are felt to be so personal as to expire upon the victim's death.
Surviving spouse or next of kin may bring action.
Damages are pecuniary injury resulting to the spouse/next of kin, ie, loss of support, loss of consortium, etc. Does not allow any recovery for decedent's pain and suffering -- those damages would be part of a personal injury survival action brought on behalf of decedent.
Creditors of decedent have no claim against amount awarded.
Recovery is allowed only to the extent that the deceased could have recovered in the action if he had lived. Thus, contributory negligence would reduce award.
TORTIOUS INTERFERENCE WITH FAMILY RELATIONSHIPS
Spouses may recover damages for loss of their spouse's consortium or services because of injuries to the spouse from defendant's tortious conduct, whether intentional, negligent, or based on strict liability.
A parent may maintain an action for loss of the child's services when the child is injured as a result of defendant's tortious conduct, whether intentional, negligent, or strictly liable.
A child has NO action in most jurisdictions agains one who tortiously injures his parent.
INTRA-FAMILIAL TORT IMMUNITY
Either spouse may sue the other in tort.
A slight majority of states have abolished parent/child immunity. The remaining states do not apply immunity where the tort is intentional or in auto accident cases so that child can recover from insurer.
FEDERAL AND STATE WAIVER OF IMMUNITY
Federal and state gov't has waived immunity and is subject to liability to the same extent as a private individual. However, there are several situations where immunity still attaches:
-- immunity still attaches for assault, battery, false imprisonment, false arrest, malicious prosecution abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights
-- immunity not waived for discretionary (planning or decisionmaking level) but is waived for operational level
-- a gov't contractor may assert the federal gov't's immunity defense in a products liability case if the contractor conformed to reasonable, precise specifications approved by the gov't and warned the gov't about any known dangers in the product.
PUBLIC DUTY RULE LIMITATION
A duty that is owed to the public at large, such as the duty of police to protect citizens, is not awed to any particular citizen, and no liability exists for failure to provide police protection in the absence of a special relationship between the municipality and the citizen that gives rise to a special duty.
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