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142 Cards in this Set

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What intent is generally required for liability for an intentional tort?
The D has intent if he either::
- Wants to produce the forbidden consequence, or
- He knows that those results are likely to occur
T or F: Children, drunk people, the mentally disabled, cannot be liable for an intentional tort.
False. There are no incapcity defenses in intentional torts.
Battery: elements
1. Harmful or offensive contact (think: unpermitted)
2. Contact is with P's person
What is a P's person?
Anything the person is touching or holding (like cooties)
Assualt: elements
1. D places in apprehension
2. Apprehension is of an immediate battery
What is "apprehension"? How do we evaluate it?
Apprehension is an understanding; not just a fear. To evaluate, consider the P's point of view. Ex: the unloaded gun. Does P know it's unloaded?
What does D have to do to place P in apprehension?
Words alone lack immediacy, so a naked verbal threat is not actionable. Has to be a conduct, such as the display of a weapon.
Note: words could negate the effect of conduct.
False imprisonment: elements
1. An act of restraint
2. Confinement in a bounded area
What consitutes an act of restraint?
Can be words
Can be an omission if there's a preexisting duty (such as the duty to move a wheelchair-bound person).
Act only counts if P is aware of it or harmed by it.
What consitutes a bounded area?
P's movements must be completely limited within a 360 degree area.
Not bounded as long as there are r'able means of escape-- i.e., not dangerous, disgusting, humiliating
Intentional infliction of emotional distress: elements
1. Outrageous conduct
2. Damage--> severe emotional distress
What intent will suffice for liability for an intentional infliction of emotional distress?
Recklessness will suffice.
What sort of conduct is outrageous?
Conduct that exceeds all bounds of decency tolerated in a civilized society...
Never sufficient: mere insults
What "plus factors" are likely to lead to a finding that conduct is outrageous?
- Ongoing, continuous
- D is a common carrier or an inn-keeper
- P is a member of a fragile class of people (kids, pregnant women, the elderly) and D is deliberately picking on P because of external signs of emotional weakness
What constitutes severe emotional distress?
It need not take any particular form. No external signs or seeking help necessary.
Trespass: elements
1. Intentional entry
2. Act of physical invasion
3. Land
What intent is required for trespass liability?
D got to the challenged location on purpose. No intent for the actual invasion-- that is, good faith belief that D did not trespass is no defense.
What constitutes a physical invasion?
Includes throwing, propelling, or projecting a tangible object onto another's land. Intangible objects are not objects of trespass-- no matter how bright the floodlight or how loud the speakers.
What constitutes land?
Land includes the air above and the soil below, w/in a r'able distance.
Trespass to chattel & Conversion: elements
1. Deliberate damage or theft
2. Some item of personal property
What is the distinction betweem trespass to chattel and coversion?
The scope of damages and the sort of remedy available.
Trespass: small damage; remedy limited to repair or rental
Conversion: lots of damage, amounting to a forced sale of the underlying chattel; remedy is the fair market value of the item
How is abandoned property treated differently than lost property?
Abandoned property (left w. intent): finder's keepers
Lost property (no intent to leave): true owner always has a superior right to title
How is lost property treated in NY?
If it's worth less than $20, finder has to make r'able effort to find owner. If can't after 1 year, can keep object
If object worth more than $20, has to turn it over to the police, who conduct a search for the true owner. They must hold it for a statutory period of time, depending on the value.
What elements will bar a donor from retrieving his inter vivos gift?
- Donor had intent to pass title
- Donee accepted (means anything short of express rejection)
- Delivery has taken place, meaning there's been a handing over of the object or something representative of it (i.e., keys)
What constitutes delivery for purposes of a gift?
- Commercial paper (check): not delivered until it's been cashed. Distinction: check from a third party endorsed by donor.
- Stock certificates: delivered once they're handed over
- Agent of donor makes a final delivery once he hands over the object
- Delivery is final once it gets to the hands of donee's agent.
What is a gift causa mortis? When is it effective?
A gift in contemplation of death.
Must occur under extreme circumstances where there's an imminent risk that death is objectively likely to occur.
Not effective:
- If donee dies first
- If donor survives
What are the elements of a lien?
A lien is a security interest in an item to enforce a debt. It consists of:
- Debt: usually in relation to services
- Debtor has legal title
- Creditor has possession
What are the two types of liens?
General: holding a bunch of property to satisfy a general balance due
Special: a right to keep an item because esrvice was performed on that item
When does release of some property under lien constitutes release of a specific lien?
If the item under lien is released, the lien is released (but D still owes the underlying debt)
Is a bailee responsible for "the thing inside the thing" bailed?
Yes, if it's normally w/in the thing.
Ex: Spare tire inside a car parked in a garage.
Specific rules:
- Bank is bailee of everything in a safe deposit box
- Park & lock garage operators are not bailees
- Coat check operators are liable up to the statutory limit ($200 is a gratuitous check, higher if paid for)
Can a bailee disclaim bailment liability?
Complete exculpatory clauses are invalid.
Consent is a defense to which intentional torts?
All intentional torts.
Must a person giving consent be of capacity?
Yes, must have capacity to give legal consent.
Note: kids can consent to things that are age-appropriate.
What are the limitations of the consent defense?
All consent has a scope; exceeding the scope of the specific consent may mean liability.
Consent is not valid if it's induced by fraud or duress.
What are the types of consent?
Implied: person goes somewhere and participates in activity where invasions are common (except w/ re to invasions that aren't routine part of the activity)
- Apparent: based on D's reasonable understanding of P's objective conduct
Suzie got on a roller coaster. Suzie was scared to death, didn't actually want to get on the rollercoaster. The rollercoaster scared Suzie half to death. She sues for intentional infliction of emtional distress. Result?
No liability. Suzie's subjective state of mind is irrelevant.
What are the requirements for exercising the three "protective privileges?"
- Timing: threat to which D is responding must be imminent or in progress (no revenge)
- D must have reasonable belief that the threat is genuine
- Force used must be proportional to the provocation
How much force is proportional for a valid defense of self, others, or property defense?
The force necessary under the circumstances, up to deadly force. Except that deadly force isn't Ok for the protection of property.
In NY: How much force is proportional for a valid defense of self, others, or property defense?
Duty to retreat before using deadly force, except in one's own home or if one is a police officer.
Which tort is necessity a valid defense to?
The three property torts: trespass, conversion, and trespass against chattel
What conduct is covered by the public necessity defense? Is it an absolute or partial defense?
In a public necessity, a D invased P's property in an emergency so as to protect the community as a whole or a significant group of people.
Public necessity is an absolute defense.
What conduct is covered by the private necessity defense? Is it an absolute or partial defense?
D invased P's property in an emergency to preserve an interest of his own.
Not an absolute defense. Instead:
- D must pay for actual harm caused (but not if it's nominal or punitive)
- D has a right of refuge: right to stay in a position of safety (mini eminent domain). If owner chases him away, D might have an action against the owner.
Defamation: elements
1. Defamatory statement
2. Publication
3. Damages-- maybe...
What constitutes a defamatory statement?
Can be oral or written, adversely affects P's reputation.
Not enough: name calling
Usually enough: a false allegation of fact
In between: statement of opinion. Only defamatory if the listener has reason to believe the speaker has facts to back it up
**NY: opinion is defamatory depending on its tone, purpose and context
D says terrible things about Elvis Presley in a recently published memoir. Defamation?
No-- person who is the object of defamation must be alive.
What constitutes a publication?
Distribution at least one person other than P.
What damages must a P show to recover for libel?
Trick question-- no damages. Enough that D made a defamatory stmt embodied in a permanent medium of expression.
What damages must a P show to recover for slander (spoken defamation)?
If it's slander per se, no need to prove damages. If not, must show economic loss (not emotional distress).
What falls within slander per se?
- Stmt re: P's business or profession
- Stmt that P committed a crime of moral turpitude
- Stmt that P suffers from a loathsome disease (venereal disease, leprosy)
NY: imputation that P is gay.
What are the defenses to defamation?
- Consent
- Truth
- Privilege
Is privilege an absolute defense to defamation?
It's an absolute defense if it's based on the identity of the speaker, like a spouse speaking to a spouse or a gov't officer in the course of business (ex: lawyers, judge).
It's a qualified defense if it's made during a socially useful occasion of speech (like a credit report or a recommendation letter)-- qualified in that it only includes reasonable misstatements and not deliberate lies or irrelevancies.
When does a P have to bring forth a 1st Amendment defamation claim?
When the underlying matter is one of public concern
What are the elements for establishing liability under a 1st Amendment defamation claim ?
Same as regular defamation, plus:
- P has affirmative burden of showing falsity
- P has to show fault, or D's awareness re: whether the information was true or false.
What does a 1st Amendment defamation P have to show to establish fault?
Depends on who the P is:
- If P is a public figure, must show recklessness or intent (malice)
- If P is a private figure, have to show negligence
How does NY treat privacy torts?
Privacy torts are not recognized as common law. Of the four torts, only appropriation is a cause for recovery in NY, and only under statute.
What is the tort of appropriation?
What are the exceptions to liability for this tort?
When D uses P's name or picture for a commercial purpose.
Exception for newsworthiness: if D's behavior would be protected by the 1st Amendment (ex: putting a pic on a magazine cover).
What is the tort of intrusion?
What must P show to recover under this tort?
Intrusion is the invasion of a person's seclusion in a way that would be objectionable to an average person. Trespass is not required.
P must show that he was in a position where there was a legitimate expectation of privacy.
What is the tort of false light?
False light is the widespread dissemination of a major misrepresentation about the P that would be objectionable to the avg person.
How is the tort of false light distinguishable from defamation?
- "Dissemination" must be more widespread than "Publication"
- Information about the P does not have to be defamatory
- Damages: can only get economic damages for defamation; can get emotional or psychological damages for false light
- False light is not an intentional tort, since no intent must be shown and liability results even if D acted in good faith.
What is the tort of disclosure of confidential fact?
What are the exceptions to liability for this tort?
The widespread dissemination of confidential information about P that would be objectionable to the avg person.
- Newsworthiness: v. broadly interpreted
- "Dual life" fact pattern: situation where P chooses to keep certain info in one realm of his life out of the other realm. The carrying over from one realm to another isn't actionable.
What are the defenses for privacy torts?
- Consent is a defense for all four
- Defamation privileges are defenses to false light and disclosure
What are the four economic torts tested in NY?
- Fraud
- Prima facie tort
- Inducing breach of K
- Theft of trade secret
What are the elements of the tort of fraud?
- An affirmative misrepresentation
- Fault (knowledge or recklessness)
- D intended to induce reliance
- P took what D said and used it as a significant element of his decision making
- Economic harm was caused
What are the elements of a prima facie tort?
- An intent to do harm (usually economic)
- Resulting harm
What are the elements of the tort of inducing a breach of contract? Any exceptions?
- A valid K that was not terminable between P and a third party
- D knows about the K
- D exercises persuasion to convince the third party not to perform
- Third party indeed breaches
Liability usually doesn't extend to Ds in the role of advisors, since the act is part of the advising relationship.
What are the elements of a theft of trade secrets?
- P owns a valid trade secret
- D takes it by improper means
Typical fact pattern involves a traitrous insider and an industrial spy.
What qualifies as a trade secret ?
A trade secret if P possesses the information that provideds a business advantage, and the information isn't widely known.
In general, who do we owe a duty of r'able care to?
Only to forseeable victims. Anyone outside the "zone of danger" is not forseeable, too far to worry about.
Are rescuers who are summoned from far away owed a duty of r'able care?
Yes, under an exception to the Paslgraf doctrine. "Danger invites rescue..."
Are fetuses owed a duty of r'able care?
Depends on the case:
- In an accident where a pregnant woman is hurt, fetus is considered a forseeable victim and may . If baby dies, no claim.
- If pregnant woman consults a physician and he fails to tell her about potential deformities, NY cts will allow recovery for the health of the child (no emotional care)
- If a doctor botches a sterilization and more babies are born, no recovery.
What is the standard articulation of the standard of care?
Person must give the care that would be given by a r'ably prudent person acting under the circumstances. It's an objective standard-- we make no allowances for the person's shortcomings.
What is an exception to the rule that the general standard of care doesn't take into account the D's personal characteristics?
- If D has superior knowledge (expertise or a specific nugget of relevant info), we hold him to the std of a r'ably prudent person with that knowledge.
- If D has a physical characteristic such as a disability
What is the std of care required of children?
- Children under 4--> incapable of negligence
- Children between 4 and 18 owe the care of a hypothetical child of similar age, experience, and intelligence.
What is an exception to the general standard of care expected of children?
If the child engages in an adult activity, then we use the standard objective std.
What is the std of care required of professionals?
The duty of care owed by an avg member of the profession practicing in a cimilar community. Duty to conform to the prevailing practice.
Modified locality rule
Used in minoity of states, including NY.
Holds professional D liable for failure to conform with conduct prevailing in the same kind of locality-- big city drs. must act like other big city drs., country drs. like country drs., etc
Doctor's duty of informed consent.
A Dr. must disclose material information to a patient. If he fails to disclose such information, the eventual materialization of a risk creates a cause of action.
What are the exceptions to Dr's duty of informed consent?
No duty to disclose:
- A commonly-known risk
- If patient declines the information
- If patient is incompetent and can't understand the disclosure
- If disclosure would harm patien
If a dangerous condition that warrants imposition of a duty exists, what must the occupier of land do to protect visitors?
Either remove the dangerous object or warn P
What is the duty owed by an occupier of land to an undisclosed trespasser?
NO DUTY for either activities conducted on the land or dangerous conditions existing on it.
What is the duty owed by an occupier of land to an disclosed trespasser (or a trespasser that should have been anticipated)?
- For activities, the duty of a r'ably prudent person under the circs
- For dangerous condition, the duty to protect if:
- The condition is artificial
- The condition is highly dangerous (could maim or kill)
- The condition is concealed from the trespasser
- The condition is one that occupier knew about in advance (no duty to inspect)
What is the duty owed by an occupier of land to a licensee (a person entering for his own purposes)?
- For activities, the duty owed by a r'ably prudent person under the circs
- For conditions, owe a duty for conditions that:
- Are concealed from the trespasser
- Occupier knew about in advance
What is the duty owed by an occupier of land to an invitee?
Activities: the duty of a r'ably prudent person under the circs
Conditions: duty if condition is:
- Concealed
- One which the occupier either knew about in advance or could have discovered through a r'able inspection
What is the standard of care for occupiers of land in NY?
NY has abolished the categorical approach, only uses the r'able prudence std. Status of guest may still be probative in deciding the content of the duty.
Are firefighters and police officers entitled to recover for injuries sustained on D's land?
Not any injuries that were obtained due to the inherrent risk of the job.
What is the duty owed by an occupier of land to a trespassing child?
Occupier owes the duty of a reasonably prudent person to protect the child from artificial conditions on the land.
Common law duties and statutory standards of care-- what r'ship?
A P may be able to "borrow the standard" used under the statute and argue that violation of it amounts to negligence per se.
When will a P be allowed to borrow a statutory standard of care?
"Class of person, class of risk" test:
- If P is a member of the class of persons the statute seeks to protect
- If the accident is in the class of risks that the statute seeks to prevent
What are the exceptions to the "class of persons, class of risk" test?
P will not be able to borrow the std even if he meets both prongs of the test if:
- Compliance with the statute would be more dangerous than a violation
- Compliance would be impossible
Is there ever a duty to act affirmatively? To rescue?
In general, never a duty to act affirmatively.
No duty to rescue unless:
- There is a preexisting r'ship between P and D
- D caused the underlying peril
- D started to rescue
If there is a duty to rescue, what is it?
It's the duty that's r'able under the circs. D is not required to put her own life at risk to rescue another.
A duty to rescue exists. Are there any exceptions to liability for failing to rescue?
In some states including NY, yes-- Good Samaritan laws. No liability for starting to act for:
- Drs
- Nurses
- Veterinarians
Features of NY no-fault insurance-- requirements of coverage, types of injuries covered
- Every car owner must have no fault and liability insurance
- Covers only personal injury (not pain & suffering or property damage)
Who is entitled to recover against owner's no-fault insurance?
Anyone injured by a covered vehicle, including:
- Anyone driving in D's car
- D himself
- Any passenger in D's car
** Note that any P must still establish negligence; if P himself negligent, no recovery
Who is not entitled to recover under no-fault insurance?
- Drunk drivers
- Drag racers
- Car thieves
- Fleeing felons
How can a P recover more than is allowed under no-fault?
Two ways:
- If his injuries exceed the statutorily-defined threshold. Must show that he suffered more than $50K in injuries, taking into account medical costs, 80% of lost wages (up to $2000 per month), and a miscellaneous cost of up to $25/day.
- If his injuries are serious: including death, dismemberment, significant disfigurment, serious fracture, permanent or total loss of bodily organ or function
What does a P have to show to recover for a negligent infliction of emotional distress?
1. That D committed negligence
2. That P was in the zone of danger (it was a close call)
3. P suffered subsequent physical manifestations of the trauma, evidencing the underlying emotional distress
What are the elements of a bystander claim for negligent infliction of emotional distress?
A claim recognized in about 1/2 of states PLUS NY. P must show he was:
- Present
- A witness to a negligently-inflicted injury to a close family member
What are the features of NY's bystander claim for negligent infliction of emotional distress?
NY has a narrow bystander standing. Must show:
- Was in the zone of danger
- Injured was a CLOSE family member-- a parent, spouse, or child
In NY: Does a pregnant woman who undergoes negligent medical treatment (malpractice) have a bystander claim for infliction of emotional distress?
- If the child dies, yes
- If child lives, but is deformed by the malpractice, he has his own claim. Mother does not have a bystander claim.
What are the elements of a showing of breach?
P must:
- ID the wrongful conduct
- Explain why it's wrongful
What is res ipsa loquitur?
Literally, "the thing speaks for itself."
A theory of recovery that can be used by Ps who can't exactly identify what D did wrong. Successful showing doesn't guarantee P will prevail, but it helps create a prima facie case.
What must a P show to recover under a theory of res ipsa loquitur?
A probabilistic showing that:
1. The accident doesn't normally occur in absence of negligence. Can be introduced through expert testimony or through leave for judicial notice.
2. The accident that occurred is normally due to the negligence of someone in D's position
What are the two types of causation showings required for a prima facie case?
Facual causation (causation-in-fact) and legal causation (proximate cause)
How do you show an act is the factual causation of an injury? How does a D rebut this showing?
P: Ask if, BUT FOR the breach, P would be OK today.
D: Show that, even if D had been totally careful, P would still have sustained injuries
How do you prove guilt where two tortfeasors are each partially guilty?
Ask, were both A & B a substantial factor of the negligent event?
How do you show cause-in-fact in a case where there are multiple potential tortfeasors but only one was actually responsible?
Ct. will shift the burden of proof to the Ds and ask each to disprove their liability. If neither can do so, both will be held jointly liable.
What does a P have to show to establish proximate causation?
Comes does to whether it would be FAIR to place liability on D given the foreseeability of the consequences that ensued. P shows:
- D owed me such and such duty
- D breached that duty, and here's how
- P suffered an injury
- It would be fair to make S pay (moral blameworthiness)
How do you analyze the proximate causation if P is the direct cause of the injury? The indirect cause?
Direct: injury is almost always foreseeable, liability is fair
- If fact pattern is one that is already judicially settled, use jurisprudence
- If fact pattern is not settled, look at the breach and ask, what is the kind of result that we're worried about happening? Is that what happened to P? If so, then impose liability.
What are the four fact patterns of settled law re: indirect causation analysis?
D negligent for all consequences of the original act plus:
- Intervening medical negligence
- Intervening negligent rescue
- Intervening protection or reaction forces (stampede, e.g.)
- Subsequent accident or disease
What is the eggshell skull doctrine?
Once D committed other elements of the tort, D must pay all harm to P, even if it is surprisingly wide in scope-- you take your P as you find him.
What damages will a tortfeasor be responsible for?
Medical bills, lost wages, pain and suffering
Does NY follow the collateral source rule?
No. In NY, amount of damages will be reduced by the amount a P gets paid out from collateral sources (personal insurance, e.g.)
What additional showing must a establish to get a ct to issue an injunction?
- There is no adeqaute remedy at law
- P is suffering an invasion of either a property interest or a protectible right
- That injunction will be enforceable
- That the benefit to the P will outweigh the cost to D
When will a ct find that no adequate remedy at law exists?
- If D is insolvent
- If the harm can't be measured in economic terms
- If the tort happens repeatedly
What factors will a court consider when deciding whether the conduct can be enjoined?
- How complex the conduct is-- the more complex, the harder to enforce the injunction
- How long the conduct will continue for
What defenses can D present to argue against the grant of an injunction?
- Unclean hands: P is guilty of some misconduct or wrongfulness
- Laches: there's been a prejudicial delay, as P waited too long in seeking injunction
What does a P have to show to get the court to issue a preliminary injunction?
- Likelihood of success on the merits
- That P will suffer an irreperable harm if the activity is not enjoined
What is involved in a comparative negligence/fault analysis?
- D will offer EV that P didn't take proper care for his own safety, as measured by the applicable standard of care
- If P negligence is established, jury will assign percentages of fault between D and P
- P's award will be reduced accordingly
What is the difference between pure comparative fault and modified or partial comparative fault? Which is used in NY?
- Pure comparative fault awards damages based on the jury's findings of comparative fault, regardless of whether P was found to be more culpable. NY uses this.
- Modified comparative fault makes a finding of P culpability of more than 50% a complete bar to recovery
What is the liability for injuries caused by stray animals?
- Domesticated animals: Owner is not strictly liable for first bite, but after first bite, considered "on notice." Exception: if owner knows that the animal has a vicious propensity
- Trespassing cattle: strict liablity
- Injury cause by a wild animal kept by D-- strict liability
Tort law imposes strict liability for injury caused by hazardous activities. What are hazardous activities?
Activities that:
- Can't be made safe
- Pose risk of severe harm
- Are uncommon in the community where they're being conducted.
On the bar, will be obvious: blastins/explosives, dangerous chemical or biological materials, nuclear energy or radiation
What are the elements of a product liability claim?
1. D is a merchant
2. EV that the product has a defect (either manufacturing or design)
- P must show defect existed when the product left D's hands
- P has to show he was a foreseeable user engaging in a foreseeable use
Who qualifies as a merchant under product liability?
Someone who routinely deals in goods of the type at issue in the claim.
Specific exs:
- Casual sellers or service providers are not merchants
- Commercial lessor is a merchant
note: P doesn't need to establish contractual privity w/ D, as long as D was in the chain of delivery
How does a P show a manufacturing defect?
Show that the particular product differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect.
How does a P show a design defect?
P must identify an alternative way the product could have been built that:
- Would have been safer than the product actually marketed
- Would be cost effective to produce (same cost or just sligtly more)
- Would be practical, would not interfere with ordinary use of the product
Can a product defect be overcome by a written warning?
If product has a residual risk that can't be designed away and can't be seen by users, it must have a warning. The information included in a warning is considered part of the product design. Whether it will be sufficient depends on the adequacy of the warning.
How does a P show that the product in question in a products liability case hasn't been altered since leaving D's hands?
Ct will put in place a presumption that a product that hasn't been moved from the regular channels of distribution has not been altered. It is then up to the D to try to show that the product WAS altered.
When is a use or a user "foreseeable?"
Fact-specific, but remember that the use involved in the injury does not have to be the intended use of the product-- just a known and therefore foreseeable one.
What are the defenses to strict liability?
Comparative fault.
What is the effect of a worker's compensation scheme on employees and employers?
Worker's comp makes insurance the exclusive remedy of emplyees injured on the job. The employer becomes strictly liable for the accident; the employee is in turn barred from pursuing other tort recovery against employer or co-workers and cannot recover punitive damages.
Which employees are covered under workers' comp?
- Not contractors
- All employees, except:
Teachers and non-manual workers for non-profits, parttime domesetic employees, and clergy
What injuries can be covered by workers' comp?
Any activities that arise under employment. Specifically, not:
- Injuries due solely to intoxication
- Employee intentionally harms himself or others
- Injury occurs during off-duty, voluntary athletic activity
- (Absurd) Horseplay
Define nuisance; exs.
An interference with a land occupier's right to enjoy the land to an unreasonable degree
Most commonly tested examples involve incompatible land use.
How will the Ct evaluate a nuisnace?
- Doesn't matter if D acted with best efforts to minimize harm, with negligence, or with recklnessness.
- Ct will balance the interests: look at D's legal right to use his land in a way that maximizes his interests v. P's right to quiet enjoyment of his land
What are the four types of relationships relevant for analyzing vicarious liability?
- Employer/employee
- Hiring party/independent contractor
- Auto owner/driver
- Parents/kids
What determines whether an employer will be found vicariously liable for the actions of his employee?
Whether employee was acting within the scope of his employment.
Generally, intentional torts are outside the scope of employment, except:
- If job actually involves the use of force
- If job generates animosity or friction
- Anytime the intentional tort is done with the belief that it is in the boss' interest
What determines whether a hiring party will be found vicariously liable for the actions of an independent contractor?
Generally, no vicarious liability, except in the case of a land occupier who hires a contractor to work on his premises. If contractor injures an invitee, occupier will be vicariously liable.
What determines whether a car owner will be found vicariously liable for the actions of a driver?
Generally, no liability, except where the driver is running an errand for the owner.
NY: permissive use doctrine--> owner is vicariously liable for anyone driving with permission, and law assumes permission is granted (doesn't apply to car leasing/rental cos.)
Are parents vicariously liable for the acts of their children?
No, without exception.
Are there any immunities from tort liability?
Not any more...
One leftover: governmental immunity. Gov't is immune when:
- Gov't employee is exercising discretion with regards to a traditional gov't activity
- Not immune when engaging in proprietary functions (maintaining municipal parking lot, state university dorm rooms)
What is a claim for loss of consortium?
Whenever a victim is a married person, her uninjured spouse also gets a cause of action. Can sue for three kinds of damages:
- Loss of services
- Loss of society
- Loss of sex