vicarious liability-

1) conduct is general kind hired to perform

2) occurs within hours and spatial boundaries of job

3) motivated by attempt to serve employer

Considerations:

- if employee breaks rules, employeer still maybe liable

- intentional conduct generally can be liability

- emphasis on EXPECTATIONS

- incentives

- loss spreading

- morality (Cost of doing business)

1) represented by principle

2) relies on representation

3) does something becuase they rely on representation

1) Duty of care?

2) Breach of duty?

3) Causation

4) Resulting Damages

(5) Possible defenses?

standard of care a reasonable person would practice (not free of mistakes)

Justifications: social morality, incentive, loss spreading

--> adopt as standard of conduct a statute that 1) protects a class of persons 2) protects interest being evaded 3) protect interest against kind of harm that resulted 4) protect from particular interest against hazard from which harm resulted

1. hazard present for a sufficent period of time prior to accident (ample time to remedy)

2. visible

3. aparent

(Business practice rule exception)

"the thing speaks for itself"

1) events don't usually occur without negligence

2) exclusive control with D

3) P had no voluntary part(then comparative negligence)

- custom (often helps show evidence of standard of care)

- common practice of profession

Did D owe P duty of care?

Did D breach this duty?

- special relationship

- non-negligent injury (even if accident, if u know you caused harm, help!)

- non-negligent creation of risk

- voluntarily comes to aid (fulfill!)

- promise to warn

- foreseeability (rely upon 411)

special relationships can cause D to be responsible for wrongdoers action (patient/ therapist)

- foreseeability (Tarasoff)

- ID victim

- known could control

- children (2nd restatement)

- no privity

- crushing liability

- not able to protect themselves well (social host, drinking)

Landowners and Occupiers

- Old Approach

- invitee (some type of benefit, affirmative duty to make safe dangers that are known and known through inspection)

- licensee (invited, fix dangers aware of)

- tresspassor (no willful or wanton risk created)

Landowners and Occupiers

-  Post-Heins Approach

- merged licensee and invitee

1) non-tresspassers

2) tresspassers

Pro change: more fair, eliminate complex laws, forseeability imp!, classifications shouldn't be used as shields

Con change: stable and est. system, courts used to it

1) Specific harm rule (unless aware of imminent harm)

2) prior similar instances test

3) totality of circumstances (most common)(nature, condition and location, forseeability)

4) Balancing test (foreseeability of crime v. burden of precautions)

rare now,

justifications: domestic tranquility, create danger of fraud, deplete family resources, benefit parent if child dies and inherit moeny, interfere with parental discipline and control

- Goller Standard- Immunity non-existant until:

- negligence involves parental authortiy

- exercise of parental discretion (goods, clothing, housing, medical)

- unpredictable approach

- inaction- immune (child falls in hot bathtub)

- action- not immune- child hurt by powermower (maybe because powermower is always dangerous)

- reasonably prudent parent

- benefits: more uniform, helps parents (insurance $)

- problems: not uniform application

Broadbent: child fell in pool while mother picked up phone

- reluctant to allow

Issues: proof (no fraud), causation, how to determine pain and suffering

- traditional impact approach (real symptomology)

- zone of danger approach (reasonable fear of injury, use by most states)

1)Recovery if not in zone of danger (closeness of relationship, shock from observance, near scene of accident and severity of physical impact)

2) zone of danger (majority) (limits liability, but loss spreading, social morality, incentives, difficult to draw lines)

3) proximity (not if you see husbands hotel on fire on TV)

- foreseeability (someone will rely on your work)

- near privity (not open to huge group of people)

- RESTATEMENT: (liable to limited group of people, not necessary to know their ID)

1- limited recovery (cost of hospital bills, new sterilization procedure, lost wages, sometimes emo. distress)[unhealthy baby, may get more for special medical and edu expenses]

2- full recovery w/o offsetting economic or emotional benefits of child

3- full recovery with offsetting for benefits of child

4- healthy v. unhealthy baby

"but for" cause

- need connection between Ps harm and Ds negligent conduct

- the worse the conduct, the laxer courts are for requirements of causation

used when there are multiple causative factors

- negligent act was "but for" cause of injury

- negligence causally linked to harm

- Ds negligent act or ommission proximate to injury

ex: 2 fires on both sides of house lit negligently and independently, burned down house that either would have done alone)

Joint and Several Liability

- Traditional Approach

more than one relevant cause may be invoved in harm of P

- P could sue Ds jointly, then pick which D should impose the entire judgment on (Then D could sue other D later to get their part of judgment)

Proportional fault: (having Ds obtain contribution from eachother in proportion to their fault)

Purely several: having D only pay the % they are responsible for (regardless of other Ds solvency)

Modified Liability: (P can only collect when < 50 or < 50% at fault)or (P 0% at fault, Ds liable)

* Reallocation of liability: if one D has no money, break up ratio of their % among Ds or Ds and P

- problems with ID (time lag, evivdence disappears)

- problems of boundaries (widespread diseae, no stopping point)

- problems of source (many asbestos producers)

Proximate Cause- "Legal Cause"

- ex: Palsgraph

Approaches

- directness (where to cut off causal chain)

- foreseeability/ probability

- matter of policy (give up on directness/ foreseeability, when conduct looks worse flexible test to find proximate cause)

- limits on duty (where to cut off causal chain)

- Eggshell Plaintiff

- discounted damages if P acted normally

- Eggshell psyche (girl hit by car, schizo.)

- scope of risk (give child gun, drops on foot)

- something happens later than Ds conduct that intervenes

- RESTATEMENT 3 ABANDONED (ambulance crash after you caused car crash)

- scope of risk (girl raped behind unkept bush)

- One D makes agreement wtih P, D remains in suit and guarentees P certain % of damages depending on success, they can work against other D to help P

(total damages- settlement- 50% comparative fault damages= Ps judgment , or total damage- 50% comparative fault damages- settlement= Ps judgment)

- traditional rule: recovery of damages is reduced by failure to mitigate damages

- not able to recover full (or diminished) amount without mitigating damages: degree of risk, religion, seatbelts

- waiver or release and implied assumption of risk

- sometimes invalid if: concerns business suitable for public regulation, business performing service that is public necessity, business has advantage of bargaining strength

liability without any need for showing of negligence

ultrahazardous activities (Rest. 1)

abnormally dangerous activities (Rest. 2)

warranty: like contract, privity required, no fault liability (lower damages, cost of what you got vs. what you intended)

negligence: no privity necessary, do have to show fault, in general damages are high

--> Is strict liability a hybrid?

- liability based on strict liability, not warranty (don't need privity, bystanders can collect)

- even if seller has exercised all possible care

- consumer expectations approach

1990s- mixed adoption so far

- less strict liability, more implied negligence?

1) manufacturing defects: SL

2) Design defects: negligence

3) warnings: negligence test

- more risk/benefit

(everyone in chain liable, though some states have statutes)

- looks more like negligence, does product have excessive risks compared to benefits, measure liability by this (Restatement 3rd), D friendly, Complex products

--> Sometimes P friendly if it's open and obvious (consumer expecations would say no liability) but the fix is really cheap (risk/benefit would allow liability)

Restatement 2nd: as long as warning is adequate, doesn't matter how dangerous product is, no design defect

Restatement 3rd: dangerous should be strict liability even if warning disregarded but adequate

Intent,

Recklessness

intent: acting volitionally with knowledge that some result may ensue

recklessness: between negligence and intent (knows of risk of harm created and precaution would eliminate risk with slight burden)

assault: physical act of threatening nature puts individual in reasonable fear of imminent danger

battery: intentional infliction of harmful/ offensive bodily contact upon another

- reasonable person standard, eggshell P idea

- unlawful restraint of an individual's person liberty of freedom of locamotion

imprisonment: unlawful exercise or show of force where person is compelled to remain

1) actual or apparent physical barriers

2) overpowering physical force or by submission to physical force

3) threats of force

4) other duress

5) asserted legal authority

1) intentional or reckless

2) conduct was outrageous and intolerable

3) connection between wrongdoing and ed

4) emotional distress was severe

- consent (prize fighting)

- self defense (good faith)

- protection of property (interest in property doesn't outweigh interest in life)

- private necessity (privilege born of necessity)

- public necessity (gov't will normally compensate you)

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