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143 Cards in this Set

  • Front
  • Back
Prima Facie Case
1. Duty on the part of D to conform to a specific standard of conduct for protection of P against unreasonable risk of injury;

2. Breach of that duty by D;

3. The Breach is the actual proximate cause

4. Damage
What is the Duty of Care?
owed to all forseeable P's. applicable standard of care. Have to ask:

1. Was the P foreseeable?

2. If so, what is the applicable standard of care?
What is the standard when a breach of duty to "P1" also injury to another, possibly unforeseable P ("P2")?
Cardozo View (Majority)-Foreseeable Zone of Danger: P can only recover if can establish that a reasonable person would have foreseen a risk of injury

Andrews View (Minority)Everyone is Foreseeable: P2 may establish the existence of a duty by showing that D breached a duty to P1
is a foreseeable P where D negligently put himself or a third person in danger
Prenatal Injuries
Duty of care owed to a viable fetus. Child may not recover for "wrongful life" but the parents may recover damages in "wrongful birth" or "wrongful pregnancy" for additional medical expenses and for pain and suffering. ordinary child rearing expenses cannpt be recovered
Intended beneficiaries of Economic Transactions
a third party, such as beneficiary of a will, may be a foreseeable P
Standards of Care:

Basic Standard-Reasonable person
objective standard measured against what average person would do

mental deficiencies and inexperience are not taken into account

reasonable person should have same physical characteristics as D (but blind person not expected to fly plane)
Particular Standards of Conduct:

required to possess the same knowledge and skill of a member of the profession in good standing in similar communities. specialists held to a higher degree of care
Particular Standards of Conduct:

duty to dislose the risk of treatment to enable patient to make an informed consent
Particular Standards of Conduct:

held to standard of a child of like age, education, intelligence, and experience.

subjective test

children engaged in adult activities might be held to adult standard of care
Particular Standards of Conduct:

Common Carriers and Innkeepers
held to a very high degree of care; liable for slight negligence
Common Carriers and Inkeepers Exam Tip:

What must the P be for this standard to apply?
a passenger or guest
Standard of Care:

Automobile Driver to Guest
owed an ordinary duty of care
Bailment Duties:

Duties Owed by Bailor
For a gratuituous bailment, Bailor must inform of known, dangerous defects in the chattel.

For a bailment of hire, the bailor must inform of chattel defects of which he is or should be aware
Bailment Duties:

Duties owed by Bailee
1. sole benefit of the bailor bailment: low standard of care

2. sole benefit of the bailee bailment: high standard of care

3. Mutual benefit bailment: ordinary standard of care
Emergency Situations
1. D must act as a reasonable person would under the same conditions

2. not to be considered if emergency of the D's own making
Owners and Occupiers of Land:

Duty of Possessor to those off Premises
1. no duty to protect from natural conditions

2. duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land

3. must carry on activities on property so as to avoid unreasonable harm to others outside of property
Duty of Possessor to those on Premises Exam Tip:

Urban Areas
owner/occupier is liable for damage caused off the premise by trees on the premises (falling branches)

*exam favorite in recent years
Duty of Possessor to Those On Premises:

1. no duty to undiscovered trespasser

2. Discovered Trespassers: warn or make safe artificial conditions known to landowner involvinf risk of death or SBI

3. use reasonable care in the exercise of "active operations" on the propert
Duty of Posessor to Those On Premises:

Infant Trespassers-Active Nuisance Dontrince
1. ordinary care

2. P must show
a. dangerous condition owner should be aware of
b. owner knows or should know children frequent the vicinity
c. condition likely to cause injury
d. expense to remedy light when compared to the risk
Infant Trespassers Exam Tip:

Does child have to be attracted to the land by the dangerous condition?

also, the attraction alone is not enough for liability. the 4 requirements have to be met (see first card)
Duty of Possessors to those on Land:

Licensees (one who enters the land with the possessor's permission for her own purpose or benefit, not the owners)
1. duty to warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm and that licensee is likely to discover

2. exercise reasonable care in the conduct of "active operations" on the property

3. Possessor has no duty to inspect or repair

*social guests are considered licensees
Duty of Possessor to those on Property:

Invitees (enter land in resonse to invitation by the landowner)
same duty as owed to licensees PLUS a duty to make REASONABLE INSPECTIONS to discover nonobvious dangers

*one will lose invitee status if she exceeds scope of the invitation
Duty of Possessors to those on Premises:

Duty Owed To Users of Recreational Land
if allow to use land with no fee, not liable for injuries unless landlowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity
Duty of Possessor to Those On Premises:

Duties of Leasor and Lessee of Realty
Lesee: general duty to maintain premises

Lessor: must warn of existing defects which he knows lessee not likely to discover on a reasonable inspection. If lesor volunteers to repair and does so negligently, he is liable
Exam Tip:

What if a guest of the tenant is injured? Is the Lesor liable?
Yes, the landlord may be liable, but don't stop there. The tenant may also be liable to the guest b/c of the tenant's status as the owner/occupier of the premises
Duties of Vendor of Realty
must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendors knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection
Statutory Standards of Care:

May replace the general c/l duty of care if:
1. the statute provides for a criminal penalty

2. clearly defines the standard of conduct

3. P is within the protected class; and

4. statute was designed to prevent the type of harm suffered by the P
Statutory Standards of Care:

Effect of Violation or Compliance
under the majority view, unexcused statutory violation = negligence per se; establishes the first two requirements in the prima facie case: conclusive presumption of duty and breach of duty

even though violation of the statute may be negligence, compliance with the statute will not necessarily establish due care
Statutory Standards of Care:

Excuse for Violation
may be excused where compliance would cause more danger than violation or where compliance is beyond D's control
Duty Regarding NIOED:

Injury Requirement
P can recover only of D's conduct caused some physical injury.

two cases in which no physical injury requirement: (1) an erroneous report of a relative's death; and (2) a mishandling of a relative's corpse
Duty Regarding NIOED:

Zone of Danger Requirement
modern trend allows recovery based on foreseeability factors rather then zone of danger if (i)P and the person injured are closely related, (ii) P was present at the scene, and (iii)P observed or perceived the injury
Infliction of Emotional Distress:

Intentional compared to Negligent:

Conduct Required
1. conduct required for Intentional is extreme and outrageous;

2. for Negligent is subjecting P to threat of of physical impact or severe emotional distress likely to cause physical symptoms
Infliction of Emotional Distress:

Intentional v Negligent:

Fault Required
Intentional: intent to cause severe emotional distress or recklesness as to effect of conduct

Negligent: negligence in creating risk of physical injury to P
Infliction of Emotional Distress:

Intentional v Negligent:

Causation and Damages
1. Intentional: D's conduct must cause severe emotional distress

2. Negligence: D's conduct must generally cause tangible physical injury (miscarriage)
Infliction of Emotional Distress:

Intentional v Negligent:

Bystander recovery when another is physically injured
1. Intentional: P bystander must be present when injury occurs and be a close relative of injured person, and D must know these facts when he intentionally injures the other person (or D must have intent to cause P distress)

2. Negligent: P bystander must be within "zone of danger" created by D's negligent conduct. Modern trend allows recovery based on foreseeability factors.
Infliction of Emotional Distress Exam Tip:

are torts for infliction of emotional distress the only means of recovering damages for emotional distress?
No. If physical injury has been caused by commission of another tort, P can "tack on" damages for emotional distress as a "parasitic" element of his physical injury damages, without the need to consider the elements of the emotional distress torts
Affirmative Duties to Act:

Is there a general duty to act?
No, but see the exceptions
Affirmative Duty to Act:

Assumption of Duty by Acting
One may assume duty to act by acting.

Exception: Many states have Good Samaritan statutues, which exempts doctors, nurses, etc., from liability from ordinary, but not gross, negligence
Affirmative Duties to Act:

Peril Due to D's Negligence
duty to assist someone D negligently placed in peril
Affirmative Duties to Act:

Special Relationship Between Parties
may create a duty to act

common carriers, inkeepers, shopkeepers owe duties of reasonable care to aid or assist their patrons

places of accomodation have a duty to prevent injury to guests by 3rd persons.
Affirmative Duties to Act:

Duty to Control 3rd Persons
generally, no duty to prevent a 3rd person from injuring another

duty may be imposed if one has the actual ability and authority to control a person's actions and knows or should know the person is likely to commit acts that would require exercise of this control
Theories for proving Breach of Duty
1. Custom or usage: may be used to establish standard of care, but does not control the question of whether conduct amounted to negligence

2. Violation of a statute (negligence per se: Causation and damages still must be established by P

3. Res Ipsa Loquitur: in some cases, the very occurence of an event may establish a BOD. requires showing..
1. accident would not have occurred unless someone was negligent
2. the instrumentality causing the accident was in D's control

when res ispa is established, P has made a prima facie case and no directed verdict may be given to D, but P can still lose if inference of negligence is rejected by the trier of fact
Exam Tip on Res Ipsa Loquitur (RIL)

what happens in a motion for a directed verdict?
1. Deny if P has established RIL or some other evidence of breach of duty

2. Grant if P fails to establish RIL and failed to present other evidence of BOD
Exam Tip on Res Ipsa Loquitur

Can the P bring a directed verdict?
yes, but those are usually denied except in rare cases where P has established Negligence Per Se (NPS) through a statute and there are no proximate cause issues

When do you bring causation up and what must P show?
1. Once negligence conduct is shown (a breach of the standard of care owed a foreseeable P)

2. P must then show that the conduct was the cause of his injury
(i) must show both ACTUAL and PROXIMATE cause

Must Actual Cause (Causation in Fact, be established before proximate cause?
Yes, before a D's conduct can be considered a proximate cause of P's injury, it must be a cause in fact of the injury.

Actual Cause (Causation in Fact) Tests
1. "But For" Test: act or ommission is cause of injury if....

2. Joint Causes-Substantial Factor Test: Where several causes bring about an injury, D's Conduct is the cause in fact if it was a substantial factor in causing the injury

3. Alternative Causes Approach: applies when there are two acts, only one of which causes injury, but not known which one. the burden of proof shifts to D's and each must show that his negligence is not the actual cause
Causation Exam Tip:

Difference betwn Joint Causes and Alternative Causes
Under the joint causes test, both parties causes the harm.

Under the alternative causes test, although both parties acted negligently, only one caused the harm
Proximate Cause (Legal Causation)
in addition to being the cause in fact, D's conduct must also be the proximate cause of the injury.
Proximate Cause:

Scope of Foreseeable Risk
foreseeability test: D is liable for all harmful results that are the normal incidents of an within the increased risk caused by his acts
Proximate Cause Exam Tip:

will you be required to make a judgment call on foreseeability in a close case?
No. If the answer turns on a proximate cause issue, the correct choice will almost always be phrased in "if" or "unless" terms. "P will prevail if it was reasonably foreseeable that... otherwise, the facts will be so clear cut that common sense will immediately tell you whether the harm was foreseeable
Proximate Cause:

Liability in Direct Cause Cases
where there is an uninterupted chain of events, D is liable for all foreseeable harmful results, regardless of unusual manner or timing.

Most harmful risks will be deemed foreseeable in direct cause cases
Proximate Cause:

Liability in Indirect Cause Cases:

when does this come into play?
when an intervening force (act of 3rd person, act of God) comes into motion after D's negligent act and combines with it to cause P's injury
Proximate Cause: Liability in Indirect Cases:

Who is liable when there are Foreseeable Results Caused By Foreseeable Intervening Forces?
The D.
Proximate Cause- Liability in Indirect Cases:

What are some common dependent intervening forces that are almost always foreseeable?
1. susequent medical malpractice

2. negligence of rescuers

3. efforts to protect the person or property of another

4. injuries caused by another reacting to D's actions

5. subsequent diseases caused by a weakened reaction; and

6. subsequent accident substantially caused by the original injury
Proximate Cause-Liability in Indirect Cause Cases

What are Independent Intervening Forces?
forces that are not a natural response or reaction to the situation created by the D's conduct may be foreeable if D's negligence increased the risk of harm from these forces

examples: negligent acts of 3rd persons, crimes and intentional torts of 3rd persons, and acts of God
Proximate Cause:

Is D liable for results caused by unforseeable intervening forces?
Yes, D is usually liable where his negligence increased the risk of a foreseeable harmful result and that result is produced by an unforeseeable intervening force.

this rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a 3rd party.
Proximate cause:

Is D liable when unforeseeable results are caused by foreseeable intervening forces?
in this rare situation, most courts hold the D is not liable
Proximate Cause:

is D liable for unforeseeable results caused by unforeseeable intervening forces?
No. SUPERCEDING FORCES break the casual connection betwn D's initial negligent act and P's injury
Superceding and Intervening Causes:

What are the considerations in determining whether an intervening force is a superceding cause?
1. the fact that it's intervention brings about harm different in kind from that which would otherwise have resulted from the D's negligence

2. the fact that it's consequences or operation appear after the event to be extraordinary and unforeseeable;

3. the fact that the intervening force is operating independently of any situation created by the D's negligence

Personal Injury
P is to be compensated for all his damages (past, present, and prospective), both special and general

forseeability of the extent of harm is generally irrelevant; one takes one's P as one finds him

Property Damage
measure of damages is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident

Punitive Damages
P may recover if D's conduct is "wanton and willful," reckless, or malicious

Nonrecoverable Items
include (i)interest from the date of damage in a personal injury action, and (2) attorney's fees.
Duty to Mitigate
As in all cases, P has a duty to take reasonable steps to mitigate damages (seek appropriate treatment)

Collateral Source Rule
Damages are not reduced just b/c P received benefits from other sources (health insurance)
Defenses to Negligence:

What is contributory negligence?
negligence on the part of the P that contributes to her injuries. The standard of care is the same as for ordinary negligence
Defenses to Negligence-Contributory Negligence (CN)

is CN a defense to intentional torts?
Defenses to Negligence-CN

what is the effect of CN?
completely barred P's right to recovery at c/l. most J's now favor a comparative negligence system
Defenses to Negligence-CN

what is the last clear chance exception to CN?
permits P to recover despite her contributory negligence.

under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence
Defenses to Negligence-CN

what does "helpless peril" have to do with the last clear chance exception?
in many states, where the P is in "helpless peril," D will be liable if he knew or should have known of P's predicament
Defenses to Negligence-CN

What does "Inattentive Peril" have to do with the last clear chance exception?
in these situations, in which P could have extricated herself if attentive, D must actually have known of P's predicament
Defenses to Negligence:

Assumption of Risk
P may be denied recovery is she assumed the risk of any damage caused by D's act. P must have

1. known of the risk and

2. voluntarily proceeded in the face of of the risk
Defenses to Negligence-Assumption of the Risk:

Implied Assumption of the Risk
may be implied where risk is one that the average person would avoid

does not apply where there are no alternatives or situations involving fraud, force, or an emergency

common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed the risk
Defenses to Negligence:

May the risk be assumed by an express agreement?
Defenses to Negligence-Assumption of the Risk:

is Assumption of the risk a defense to intentional torts?
No, but it is a defense to willful and wanton conduct
Defenses to Negligence:

Comparative Negligence
trier of fact weighs P's negligence and reduces damages accordingly.

A majority of states allow P to recover only if her negligence was less serious then that of D

"pure" comparative negligence states allow recovery no matter how great P's negligence
Defenses to Negligence: Comparative Negligence

What is Comparative Negligence's effect on other doctrines?
1. Last clear chance: not used in comparative negligence J's

2. Assumption of the Risk: most have abolished the defense of implied assumption of risk, but have retained the defense of express assumption of risk

In most states, P's negligence will be taken into account even though D's conduct was "wanton and willful" or "reckless," but not it if was intentional
Strict Liability (Liability without fault:

Prima Facie Case-the following elements must be shown:
1. existence of an absolute duty on the part of the D to make safe;

2. breach of that duty;

3. actual and proximate cause of injury

4. damage
Strict Liability:

Liability for trespassing animals
an owner is strictly liable for reasonably foreseeable damages done by a tresspass of his animals
Strict Liability:

For Wild Animals
strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury
Strict Liability:

For Domestic Animals
not liable unless owner has knowledge of that particular animal's dangerous propensities that are not common to the species
Strict Liability: Animals

is it available to injuries to injuries suffered by trespassers?
generally not imposed in favor of trespassers in the absence of the owner's negligence

landowner may be liable on intentional torts grounds for injuries inflicted by vicious watchdogs
Strict Liability

3 requirements for the application of SL to ULTRAHAZARDOUS ACTIVITIES:
1. must involve risk of serious harm to persons or property;

2. activity must involve risk of serious harm no matter how much care is taken; and

3. the activity is not commonly engaged in in that particular community
Strict Liability Exam Tip:

Will the fact that the D exercised reasonable care relieve him of liability in a SL situation?
Strict Liability-Extent of Liability

Scope of Duty Owed
is the absolute duty to make safe the normally dangerous characteristic of the animal or activity.

It is owed to all foreseeable P's.
Strict Liability-Extent of Liability

in contributory negligence states, CN is no defense if P has failed to realize the danger or guard against it.

It is a defense if P knew of the danger and his unreasonable conduct was the very cause

Assumption of the risk is a GOOD DEFENSE

Most Comparative Negligence states apply their comparative negligence rules to SL cases
Products Liability:

Theories of Liability
1. intent
2. negligence
3. strict liability
4. implied warranties of merchantability and fitness for a particular purpose; and
representation theories
Products Liability:

Common Elements: P must show
1. a defect and

2. existence of the defect when the product left D's control
Products Liability Tip:

What is the question does not indicate what theory of liability P is using?
apply a strict liability theory
Products Liability:

Types of defects
1. manufacturing defects (if more different and dangerous then the properly made products)

2. Design defects: when all products of the line are the same, but are dangerous

3. Inadequate warnings: danger must not be apparent to users
Products Liability:

Proving a defect
1. Manufacturing: D liable if P can show product failed to perform as safely as ordinary customer would expect

2. Design: P must show D could have made product safer without serious impact on price

3. Government safety standards: noncompliance establishes that is it defective while compliance is evidence, but not conclusive, that the product is not defective

4. scientifically unknowable risks: D not liable for unforeseeable risks

5. Unavoidably Unsafe Products (such as knives): Not liable
Products Liability:

Must the defect have existed when product left D's control?
Products Liability Exam Tip

is lack of privity a problem in defect cases?
No. any foreseeable P, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them
Products Liability

Liability based on intent
D will be liable to anyone injured by an unsafe product if D intended the consequences or knew that they were substantially certain to occur. most likely tort is battery

Privity is not required, anyone can sue

compensatory and punitive damages

intentional tort defenses
Products Liability:

Liability based on negligence
must show (i)duty, (ii)breach, (iii) causation, (iv)damages

no privity required: users, consumers, bystanders can sue

commercial supplies can be liable
Products Liability-Liability based on negligence

How is breach of duty shown?
(i)negligent conduct of D leading to (ii) the supplying of a defective product

negligence is proved as in standard N cases and RIL may be used by P
Products Liability-Negligence

an intermediary's (wholesaler) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence
Products Liability-Negligence

nature of Damages recoverable
physical injury or property damage must be shown
Products Liability-Strict Scrutiny

what is the prima facie case?
(i) strict duty owed by a commercial supplier of a product

(ii) breach

(iii) causation, and

(iv) damage
Product Liability: Strict Scrutnity

what is the duty, who can sue, and who can be liable
1. D has duty to supply safe products

2. who can sue: no privity required.....does not extend to services though P can sue in negligence

3. any commerical supplier can be liable. Casuall sellers will not be strictly liable
Product Liability-Strict Scrutiny

what must P show for breach of duty?
That the product was unreasonably defective
Product Liability-Strict Scrutiny

what must the P show to prove causation?
that the defect existed when the product left D's control. Proximate cause is same as in negligence cases
Products Liability-Strict Scrutiny

Nature of damages recoverable
physical injury or property damage must be shown.
Product Liability- Strict Scrutiny

in contributory negligence states, ordinary CN is no defense where P failed to discover defect or guard against it's existence, or where misuse was reasonably foreseeable

assumption of risk is a defense

in comparative negligence states, courts will apply their rules
Product Liability-Strict Scrutiny

Are disclaimers effective?
no, irrelevant in negligent or strict liability cases
Products Liability-Implied Warranties of Merchantability and Fitness (IWMF)

what are the two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller?
1. Merchantability: whether goods are of average, acceptable quality

2. fitness for a particular purpose: arised when seller knows purpose for which the goods are required and that buyer is relying on sellers judgment and skill in selecting the goods
Product Liability-IWMF

Who can sue?
most courts no longer require vertical privity

most states adopt a narrow version of horizontal privity which means the buyer, family, household, and guests can sue for personal injuries
Products Liability:IWMF

What constitutes a breach and does P have to prove fault?
if the product failed to live up to merchantability and fitness standards

P does not have to prove fault
Product Liability-IWMF

what damages are recoverable?
personal injury and property damages as well as purely economic loss
Product Liability-IWMF

Effect of Disclaimers
generally rejected in personal injury cases, but upheld for economic loss
Product Liability-IWMF

same as in ordinary negligence cases
Product Liability-Representation Theories

in addition to the theory of implied warranties, a D may be liable when a product does not live up to some affirmative representation
Product Liability-RT

what creates an express warranty and who can sue?
1. an affirmation of fact or promise concerning goods that becomes part of the basis of the bargain

2. any customer, user, or bystander can sue. If buyer, warranty must have been part of the basis of the bargain. if bystander, she need not have relied on representation as long as someone else did
Product Liability-RT

Express Warranty-Disclaimers
effective only in the unlikely event that it is consistent with the warranty
Product Liability-RT

Express Warranty:
what does P need to show to establish breach?
that product did not live up to warranty
Product Liability-RT

Express Warranty:
causation, damages, defenses
treated same as under implied warranties
Product Liability-RT

when will a seller be liable for a Misrepresentation of Fact concerning a product?
(i)the statement was of a material fact concerning quality or uses of goods, and

(ii) the seller intended to induce reliance by the buyer in a particular transaction
Product Liability-RT

Misrepresentation of Fact:
what is liability based on?
usually based on strict liability, but may also arise for intentional or negligent misrepresentations
Product Liability-RT

Misrepresentation of Fact:
what type of reliance is required?
Justifiable reliance is required meaning the representation was a substantial factor in inducing the purchase.

Reliance need not be the victim's (it may be a prior purchaser's)

Is this a separate tort?
No, nusiances are a type of harm

what are the two types of Nuisance?
Private and public

what is it?
1. a substantial, unreasonable interference with another private individual's use or enjoyment of property

2. which he actually possesses or has the right of immediate possession

what is Substantial Interference?
interference that is offensive, inconvenient, or annoying to the average person in the community.

P's hypersensitivity not taken into account

how is Unreasonable Interference established?
severity of the inflicted injury must outweigh the utility of the D's conduct

courts take into account that people are allowed to use their land in a reasonable way

how is this distinguished from trespass to land?
in a trespass, there is an interference with the landowner's "exlusive possession" by a physical invasion

in a private nuisance, there is an interference with use or enjoyment

Public Nuisance:

what is it?
an act that unreasonably interferes with the health, safety, or property rights of the community

Remedies for private and public
1. damages

2. injunctive relief-if damages are inadequate

3. Abatement by self help-in case of private, available after notice to D and his refusal to act. only necessary force may be used

1. legislative authority-not absolute defense, but pesuasive

2. conduct of others-ten steel mills are polluting a stream, each mill responsible only for the pollution it causes

3. contributory negligence: generally no defense unless P's case rests on a negligence theory

4. coming to the nuisance: generally not a bar to a lawsuit
Vicarious Liability

What is the Doctrine of Respondeat Superior?
A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur....

within the scope of employment
Vicarious Liability

Resondeat Superior:
will a minor deviation by employee break the chain?
No, only if the deviation is substantial will the employer escape liability
Vicarious Liability

Resondeat Superior:
what are the exceptions to the rule that intentional tortious conduct is not in the scope of employment?
1. force is authorized in the employment (bouncer)

2. Friction is generated by employment (bill collector)

3. Furthering the business of the master (removing rowdy customers from premises)
Vicarious Liability

what are the exceptions to the rule that a principle will not be liable for tortious acts of her agent if the agent is an Independent Contractor?
1. Independent contractor is engages in inherently dangerous activities (blasting)

2. policy considerations
Vicarious Liability

Partners and Joint Ventures:

who is potentially liable?
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 partnership
Vicarious Liability

is an automobile driver liable for the tortious conduct of another person driving his car?
the general rule is no
Vicarious Liability

what is the family car doctrine?
in many states, the owner is liable for tortious conduct of family members who drive car with express or implied permission
Vicarious liability

Bailor for Bailee
under the general rule, bailor is not vicariously liable for the tortious conduct of his bailee
Vicarious Liability

Parent for child
parent not resonsbile for tortious conduct of child at c/l

most states make parents liable up to a certain dollar amount
Vicarious Liability

Child acting as agent of parent
courts may impose liability if child committed a tort while acting as agent of parent
Vicarious Liability

Can parent be liable for her own negligence in respect to child?
Yes, in allowing child to do something
Vicarious Liability

no liability at c/l

modern law changes this (foreseeable risk of serving a minor or obviously intoxicated adult
Vicarious Liability Exam Tip:

Is D off the hook if not vicariously liable?
No. P may prevail if D was personally negligent in supervising the person causing the injury