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Employment: Employee acts w/in scope of emplyt when performing work assigned by emply'r or engaged in contact subject to emply'r's control. Act not w/in scope if done indep'tly & does not serve any purpose of the emply'r; Christensen v. Swensen (1994) |
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Independent Contractor: Except as per 410-29, employer not liable for harms caused by Independent Contractors; Roessler v. Novak (2003) |
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IC: Ostensible Agency: Employer whose IC renders services reasonably believed to be rendered by employer is liable; Roessler v. Novak (2003) |
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IC: Peculiar Risk: Employer vicariously liable for work that involves a peculiar risk if contractor doesn’t take appropriate precautions; Roessler note case: Becker v. Poling Transportation (2004) |
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Reas. Person: Flexibility: Reasonable person standard provides flexibility to consider all of the particular circumstances of the case which may reasonably affect the conduct required.: Bethel v. New York City Transit Authority (1998) |
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Reas. Person: Mental Deficiency: Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.Bethel note case: Bashi v. Wodarz (1996) |
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Reas. Person: Disability: If the actor is ill or physically disabled, held to standard of reasonable man under like disability; Bethel notes |
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Reas. Person: Superior Attributes: Person must exercise such superior attributes as he or she possesses in the areas of: attention , percemption, memory, knowledge, intelligence, and judgment; Bethel notes |
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Reas. Person: Reg. Standards: Court may use leg or admin regulations as reasonable man standard where reg's purpose is to protect: a) class of persons of whom plaintiff is one; b) particular interest being invaded; c) against kind of harm that resulted; d) against the particular hazard that caused harm.; Martin v. Herzog (1920) |
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Res Ipsa Loquitur: Comment describing how common experience affords basis for determining exceptional accidents (comments c and d); McDougald v. Perry (1998) |
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General Duty of Reas. Care: There is ordinarily a duty to exercise Reas. care, but exceptions may be specified for policy reasons. |
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Duty Arising out of Actions: One whose act creates unReas. risk of harm to another has duty of due care to prevent risk from occurring. |
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Duty Arising out of Actions: If actors knows he has caused harm and left vic helpless, duty to exercise Reas. care to prevent future harm; Harper v. Herman (1993) |
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Actor's Conduct: Entirety of defendant's conduct considered in determining whether actions gave rise to duty of care; Harper v. Herman (1993) |
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| 40 cmt e & 42 cmts. d & g |
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Duty Questions for Judge and Jury: Whether a relationship is sufficient to impose a duty is a ? for the judge; whether relationship exists, ? for jury; Farwell v. Keaton (1976) |
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Good Samaritan Liability: If one begins to help, duty to take reasonablye care, duty not to desist if vic relies on assistance or desisting leaves vic in worse condition; Farwell v. Keaton (1976) |
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Discontinuing Aid: Reformulation of above: duty to exercise Reas. care in discontinuing aid to someone who reasonably appears to be in imminent peril; Farwell v. Keaton (1976) |
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Duty to Warn: Generally no duty to warn those threatened by third person conduct; Randi W. v. Muroc Joint Unified School District (1997) |
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Misrep'n: Writer of a rec. letter owes duty not to misrepresent or provide false information if doing so presents substantial foreseeable risk to others; Randi W. v. Muroc Joint Unified School District (1997) |
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Phys Harm: 3rd Rest. criticizes use of foreseeability of risk in duty determination -- foreseeability is jury issue; Randi W. v. Muroc (1997) |
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Phys Harm: Liabilities based on 316-19 of 2nd restatements and mental-health professionals with patients; Tarasoff (1976) |
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Phys Harm: No duty exists where categorical, bright-line rules of law applicable to a general class of cases. |
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Negligent Entrustment: One who supplies chattel to another whom supplier knows is likely to use it in a way involving unReas. risk of harm to himself or foreseeable others is liable for harm; Vince v. Wilson (1989) |
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Land Owner Duties: An invitee is either a public invitee [general public where land held open to public] or a business visitor [conducting business w/ owner]; Carter v. Kinney (1995) |
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Land Owner Duties: Social guests are licensees because guest takes premises as possessor himself uses them; Carter v. Kinney (1995) |
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Land Owner Duties: Except as per 334-39, possessor of land not liable to trespassers for harm; Carter v. Kinney (1995) |
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Land Owner Duties: Occupier liable to invitees if: Reas. care would reveal unReas. risk of harm; invitee shouldn't be expected to discover danger; and no Reas. care to protect invitee; Carter v. Kinney (1995) |
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Land Owner Duties: Same as 342, except involving activities taking place on land; Carter v. Kinney (1995) |
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Land Owner Duties: Land owner liable to tresspassing kid for harm caused by artificial condition if: a) possessor knows kids likely to trespass; b) owner knows condition poses unreasonable risk; c) children too young to realize risk; d) utility of condition + burden of eliminating danger slight compared to risk; and e) possessor doesn't make reasonable efforts to eliminate risk/protect kids.;Carter v. Kinney (1995) |
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Emotional Harm: Recovery for emotional distress permitted where it accompanies physical harm; Metro-North Commuter Railroad Company v. Buckley (1997) |
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Emotional Harm: Rejection of line between physical and mental harm (this may not be exactly right -- context unclear); Gammon v. Osteopathic Hospital (1987) |
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Emotional Harm: Liability for negligent misrepresentaion of information to be used in business transactions, limited to loss suffered to limited group of intended recipients and foreseeable reliance; Nycal Corporation v. KPMG Peat Marwick LLP. (1998) |
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Damages: Benefits conferred mitigate damages. (Comes up in assessing whether emotional benefits cut damages in wrongful birth case.); Emerson v. Magendantz (1997) |
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Causation: Adoption of substantial factor causation test: more rigorous than but-for, but discounts negligible factors; Zuchowicz v. United States (1998) |
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Physical Harm: 3rd Rest. rejects substantial factor due to misuse; Zuchowicz v. United States (1998) |
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Physical Harm: ? who negligently fails to protect ? from intentional harm jointly and severally liable w/ intentional tortfeasor. |
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Apportionment of Liability: Apportionment should be performed on the basis of causation; Summers v. Tice (1948) |
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Eggshell Plaintiff: Negligent actor liable for harm even though vic's physical condition makes harm worse than was foreseeable; Benn v. Thomas (1994) |
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Proximate Cause: Actor's liability limited to harms resulting from risks creade by actor's tortious conduct; Wagon Mound (1961) |
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Intervention of Another Person: Negligent D nor releaved of liability by intervention of another unless: harm is intentional caused by the third party and harm is not w/in scope of ?'s negligence. [Case says cf. 448 and 449.]; Doe v. Manheimer (1989) |
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Dependent Intervening Force: A DIF is a predictable response or 'reaction to the stimulus of a situation for which the actor has mae himself responsible by his negligent conduct.'; Doe v. Manheimer (1989) |
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Superseding Cause: Same standards for proximate cause (i.e. scope of risk, etc.) apply whether there is a superseding cause or not; Doe note case: Barry v. Quality Steel (2003) |
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Apportionment of Liability: Plaintiff's negligence is defined by applicable standard for a defendant's negligence.; Hightower v. Paulson Truck Lines (1977) |
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Recklessness: Definition of recklessness almost identical to criminal negligence -- substantially greater risk than negligence standard. |
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Physical Harm: Social value and altruistic motivation of rescuer can factor into assessment of rescuer's negligence and comparative responsibility. |
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Exculpatory Agreements: Should be upheld if: 1) freely, fairly made; 2) parties have equal bargaining position; 3) no social interest interferes; Dalury v. S-K-I, Ltd. (1995) |
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Assumption of Risk: Assumption of risk must be voluntary (i.e., choice of evils will not constitute assumption of risk); Bddie v. Scott (1999) |
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Landowner Liability: Someone who enters land in exercise of privilege, for public or private purpose, irrespective of owner's consent, is owed same duty / liability as to licensee; Levandoski v. Cone (2004) |
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Abnormally Dangerous Activities - One who carries on an ADA liable for harm resulting despite exercise of utmost care; Sullivan v. Dunham (1900) |
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Abnormally Dangerous Activities - Factors for determining ADA: high degree of risk, resultant harm likely great, inability to eliminate risk, activity uncommon, act. inappropriate to place where conducted, communal value of act. outweighed by danger; Sullivan v. Dunham (1900) |
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Abnormally Dangerous Activities - ADA plus a foreseeable and highly significant risk of physical harm even when reasonable care is exercised = liability; Indiana Harbor (1990) |
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Products Liability - Defective product that is unreasonably dangerous creates liability if: seller reg. sells the product; reaches consumer w/out substantial change in condition. Liability even if: seller has exercised due care; no contractual relation w/ seller; Escola v. Coca Cola (1944) |
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Products Liability - One engaged in business of selling… who sells… a defective product liable for harm to persons or prop caused by defect; Escola v. Coca Cola (1944) |
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Products Liability - Three types of defect: manf defect when prod departs from intended design; design defect when foreseeable harm cour have been reduced by a reasonable alternative design; inadequate instructions or warnings; Escola v. Coca Cola (1944) |
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Products Liability - Plaintiff must prove that a reasonable alternative design would have reduced the foreseeable risk of harm. List of factors as in Camacho; Soule v. General Motors Corporation (1994) |
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Products Liability - Defect may be inferred if harm suffered is of the type that ordinarily results from defect and that did not have another cause; Camacho v. Honda Motor Co., Ltd. (1987) |
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