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Torts: 1 of 14

Torts
I.

Policy
a. Want to compensate those to whom injury is done
b. Want to deter bad acts
c. Want to deter vigilantism
d. Motive is irrelevant (see privileges)
Intentional Torts
I.
Intent
a. Types of intent
i. Specific intent
1. Have purpose with specific act to cause harm
ii. General intent
1. Volitional act with knowledge to a substantial certainty that harm will occur
2. Acting with only a foreseeable risk not intent (negligence)
b. Proving intent
i. Subjective standard what is going on in Ds mind
ii. Must be proven from objective evidence
1. Does young child know pulling out chair will result in aunt falling?
2. Does insane person know swinging club will contact someone?
c. Mistake
i. Meant to do X to A, but do X to B instead
ii. No defense
d. Transferred intent
i. Meant to do X to A, but do Y to A instead
ii. Intent to commit tort transfers to new tort
iii. Can only transfer between 5 historical intentional torts
1. Not IIED
II.
Battery
a. Intent
b. Harmful or offensive contact
i. Evaluate on RP standard
ii. Look at TPM
iii. Touching extends beyond body
iv. No physical harm necessary, trespass to dignity is basis of tort
c. [in the absence of privilege]
III.
Assault
a. Intent
b. Imminent apprehension
i. Threats of future harm or conditional threats dont count
1. If condition is illegal, still assault
ii. Must be reasonable belief that could be carried out
iii. Apparent ability to RP, not actual ability
iv. Apprehension is all that is needed (subjective standard)
1. Fear only goes towards damage level
c. Of battery
d. [in the absence of privilege]
IV.
False Imprisonment
a. Intent
b. Confinement to a bounded area
i. Must be more than duress or moral persuasion
1. Actual or apparent barriers
2. Overpowering physical force
3. Submission to physical force
4. Threat to apply force
5. Threat to family

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6. Taking into custody under purported legal authority
a. Conviction is a complete defense
ii. Size of bounded area irrelevant
iii. No apparent reasonable means of escape
[in the absence of privilege]

V.

VI.

VII.

VIII.

c.
IIED
a. Intent
i. Limits on 3rd party IIED
1. Close familial relationship
2. Done in presence of 3rd party
b. Extreme and outrageous behavior
i. Abuse of power or position
ii. Knowledge of particular susceptibility
iii. Repetition/duration of acts
iv. Acts or threats against person or property P has a known interest in
v. Can be future threats
c. Causal relationship
d. Severe distress
i. Inverse relationship between E&O and level of distress needed
e. [in the absence of privilege]
f. [Damages]
i. Must prove severe ED for any damages
Trespass to Land
a. Intent
b. Invasion of possessors exclusive possession of land
i. Cause lies with possessor, not owner
ii. Extends to chattels, vehicles, and structures on land
iii. (If invasion is of use & enjoyment, nuisance claim)
c. [in the absence of privilege]
i. Privilege has limits
1. Time limits expire
2. Purpose changes
3. Person has been substituted
d. [Damages]
i. Always nominal
1. Adverse possession issues
2. Rental value
3. Gains from use of land or resources
4. ED if reasonably foreseeable
5. Punitive if serious wrongdoing
Trespass to Chattels
a. Intent
b. Meddling of the chattel of another
i. Chattel is impaired as to condition, quality, or value
ii. Possessor is deprived of use for substantial time
iii. Personal harm is caused to the possessor or person/thing in which possessor has legally
protected interest
c. [in the absence of privilege]
d. [Damages]
i. Only actual damages can be awarded
Conversion
a. Intent
b. Deprive possessor of all ability to use or control chattel
i. Intent and circumstance determine line between T/C and Conv
c. [in the absence of privilege]
d. [Damages}

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i. Compensatory and nominal
Privileges
a. Consent
i. Negation of consent (DIMFBI)
1. Duress
2. Incapacitation
a. Intoxication if D knew or should have known
b. Given by minor
3. Mistake
4. Fraud
a. Fraud towards collateral issue does not negate consent
5. Beyond the scope
6. Illegal activity
ii. Limits of consent
1. Within general customs and mores of situation
a. An issue of fact for fact finder to decide
2. Medical exception if:
a. Patient is unable to give consent; and
b. Risk of serious bodily harm if treatment is delayed; and
c. R.P. would consent to treatment under circumstances; and
d. Dr has no reason to believe patient would refuse treatment
iii. Objective manifestation
1. Explicit; or
2. Implicit if customary and apparent
b. Self-defense
i. No privilege to retribution or retaliation
ii. Requires reasonable belief
c. Defense of others
i. Reasonable force
ii. Privilege only goes as far as the person being defended is entitled
d. Defense and recovery of property
i. Fresh pursuit
ii. Make demand for property
iii. Reasonable level of force
iv. No privilege for mistake
v. Policy: balance self help to unburden courts and limit vigilantism through reasonable force
e. Necessity
i. Public
1. Must be intentional
2. Can be invoked by any citizen
3. Must be clearly shown
4. No recovery of damages except by statute
ii. Private
1. Compensation still required
iii. Can not invoke for taking of life
f. Authority of law
g. Discipline
i. Family
ii. Military
h. Justification
i. Invoked for prevention of harm to people or property
ii. Reasonableness standard
i. Mistake and privilege
i. Relevant to whether a RP would have made the same mistake
Negligence
- In general,
IX.

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Courts determine if a duty exists based on duty, negligence per se, and zone of foreseeability
Juries determine whether breach occurred, whether it was the but for cause (based on expert
testimony), whether it was the proximate cause, and what damages are awarded
o Ps determine who to sue, whether to join Ds, jurisdiction
o Ds determine contribution among Ds, whether to implead other Ds.
Duty
a. Default rule
i. Ever person has a general duty or standard of care for all persons all of the time to exercise
the care of the reasonable person
ii. Reasonable person
1. Objective standard
2. Not an average member of the jury
3. Mistake may be reasonable
iii. Defining the RP
1. Objective standards
a. Normal intelligence, physical capabilities
b. Normal perception, memory, and minimum standard of knowledge
2. Subjective standards
a. Any additional intelligence, skill, knowledge actually possessed by actor
(professional standard reasonable doctor)
b. Physical attributes of actor (reasonable blind person)
3. Move subjective to objective and add to previous objective
iv. How to define RP in a particular circumstance
1. Circumstance - In an emergency
2. Age of D
a. Not if activity is adult activity or inherently dangerous
3. No slack for novices
4. Customs do not mean reasonable but may be evidence of
5. Disabilities or special abilities set at RP std even if RP is higher than actual
6. Do not impute voluntary intoxication or cognitive disabilities
v. What is reasonable care?
1. Hand formula
a. P * L > B
b. Professional
i. Must prove special set of skills holding to a higher standard
1. Four historical (doctor, attorney, teacher, priest)
2. Generally, will have licensing, education, argot
3. If no professional standard, revert to RP
4. If professional, must have expert testimony to define prof standard of care
ii. Held to the standard of care of that profession
1. Not what another person in that profession would do
iii. Doctor professional standard of care issues:
1. Medical malpractice
a. Physicians must posses and use the knowledge common to a member of the
profession in good standing
b. Std of care set by custom, choice from among accepted methods
c. 3 standards, based on jurisdiction
i. National standard
ii. Specific community
iii. Similar locality
iv. Policy: designed to protect drs from standard unable to conform to
due to limitations of small towns
1. Balance deter rural dr.s vs. same std of care for all
2. Informed consent
a. Typical fact pattern undisclosed complication from procedure
o
o

I.

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c.

b. 2 standards
i. Physician centered
1. Similar to med mal, custom sets standard
2. P must show custom was violated (3 standards)
ii. Patient centered
1. Dr obligated to disclose all material risks
a. Material risk one that would affect patients
medical decisions (real risk of death)
2. 2 sub-types
a. Obj risk is material to a RP
b. Sub risk is material to this P
3. P must show choice would have been different if risk had
been disclosed.
c. Factors to informed consent
i. Adequate information on treatment
ii. Available alternatives
iii. Collateral risks for both proposed and alternate treatments
iv. Personal or financial interests Dr has in treatment choices
d. Damages
i. Based on having/not having the procedure
ii. Not based on the result of the procedure
iv. Attorney standard of care issues
1. Relationship between attny & client establishes duty
2. Customs of practice establish standard of care
3. Requires expert testimony
4. Malpractice does not lie in unfavorable result
5. Not liable for errors in judgment if best efforts used
6. P must show causation (would have prevailed in suit/will/etc)
Negligence per se
i. Policy
1. Automatically moves from duty through breach
2. Trade off between flexibility for each case and certainty for Ds
ii. Effect
1. Fact finder must decide if rule was violated
a. If violation, then automatic duty and breach
b. If not violated, no liability
iii. Court made rule
iv. Importation of statute
1. Proscriptive statutes
a. Regulatory in nature
b. Must be imported by court
c. Explicitly or implicitly establish a civil duty
2. Non-proscriptive
a. Non-regulatory statutes
i. Criminal, traffic ordinances, something other than torts
ii. Assumes legislature is defining the standard based on the will of the
people
b. No requirement to import, but courts consider:
i. Is P in the class of people statute intended to protect?
ii. Is the injury the type of injury statute intended to protect?
3. If statute not imported, fall back to RP standard
4. Effect 3 options based on jurisdiction
a. Violation is negligence per se
i. Violation of statute is automatically breach
ii. Duty & breach found as a matter of law

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b. Violation is rebuttable presumption (Majority rule)
i. Presume there is a breach, D can show excuse through
preponderance of the evidence
1. Emergency
2. Compliance > risk than non-compliance
3. Incapacity
4. Unaware and no reason to be aware
5. Unable to comply after reasonable efforts
ii. Following statute is evidence, but not proof of, no negl
c. Violation is evidence of negligence
i. Jury to determine whether act was breach
d. Contract
i. In general, separate contract and tort
1. Monetary vs. injury damages
2. Contract is risk allocation instrument; courts dont want to re-assign Contract duty
voluntarily assumed, tort duty assigned by court
ii. Must have privity and misfeasance to have tort action under the breach
iii. No duty to 3rd parties except:
1. Foreseeable purchaser duty (no requirement for privity for prod. liability)
2. Direct beneficiary duty
e. Duty to rescue
i. No duty unless special relationship and act occurs within bounds of that relationship
1. Control is major theme
a. D creates harm towards P (fault or no fault)
b. D has control of instrumentality that caused danger
c. Special relationship
i. Passenger/carrier
ii. Landowner/invitee
iii. Employee/employer
iv. Ward/caregiver
d. Statutes impose a duty
ii. Judicial activism to change behavior
1. Tarasoff duty to protect with reasonable means
iii. If rescue is undertaken:
1. Dont have to put self in danger
2. Cant discourage another potential rescuer by your attempt
3. Good Samaritan laws protect potential rescuers from harm caused during rescue
attempt
f. No duty for pure economic losses
i. Policy: dont want to have unlimited liability, focus on insurance
g. NIED
i. Zone of Danger
ii. No more impact rule
iii. 3rd party limited duty
1. Closely related to victim
2. Present at scene and aware injury being caused (zone of danger)
3. Suffer serious ED beyond that of a disinterested bystander
4. Not an abnormal response (no eggshell threshold)
h. Unborn children
i. Wrongful death
1. Mj cause of action at viability
2. Mn no wrongful death for unborn children
ii. Wrongful life
1. Brought by child (but for Dr.s negl, would not have been born)
2. Mj no cause of action

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II.

iii. Wrongful birth


1. Asserted by mother
2. Medical expenses for minor life of child
iv. Wrongful conception or wrongful pregnancy
1. Asserted by mother for negl in procedure to prevent conception
2. Child birth expenses recovered, but no child rearing expenses
i. Land
i. Trespasser enters or remains on prop of another without permission
1. No duty with exceptions
a. Presence has been discovered
b. Frequent trespassers on limited land
c. Tolerated intruders on land
d. Dangerous latent conditions unknown to trespasser
e. Trapped trespasser in peril
f. Attractive nuisance and children trespassers
2. Avoid intentionally, willfully, wantonly, or recklessly harmful conduct
a. Frequent or tolerated
i. Make premises safe or provide warning for dangers T not likely to
discover on his own
b. Child trespasser
i. Act with reasonable care if attractive nuisance met
ii. Licensee (social guest) enters or remains on land with express or implied consent for his
own benefit
1. Duty to warn of artificial and natural traps (D knows or should have known)
2. No affirmative duty to make property safe
3. Same duty as owed T + duty to warn of dangerous conditions if:
a. Owner actually knows of the dangerous condition; and
b. Owner knows or should know that L will not discover dangerous condition
4. No duty to act to discover, only to warn of known conditions
iii. Invitee (business guest) enters or remains on land with express or implied consent for
possessors benefit or enters land open for public use
1. Duty to provide act as RP in providing safe in all conditions
2. Requires affirmative steps to discover and remedy danger on property
3. Make reasonable inspections of land; act reasonably to protect from dangerous
conditions of which D knew or should have known
iv. Many jurisdictions have combined L&I, some have also combined T
1. Jury assigns duty owed as RP instead of judge assigning category
v. Status can change through course of the visit
vi. Duty to those outside of land
1. No duty for natural conditions; duty for artificial conditions
a. Exception trees in urban areas
vii. Landlord to lessee and lessees guest
1. Traditionally, no liability
2. Modern - liability as part of contract to warrant habitability
a. RP standard
b. Duty to protect from criminal acts of 3rd parties if:
i. Acts are foreseeable (landlord has knowledge of)
ii. Position allows landlord to minimize threat
iii. Landlord in position to control premises
iv. Must take precautions to protect tenants
Breach
a. Failure to meet the relevant standard of care
i. Hand formula (fail to do B when B<P*L)
ii. Often look to custom
b. Proof of negligence

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i. Direct evidence personal knowledge or observation
ii. Circumstantial evidence requires drawing inference between facts
iii. Constructive notice: arises by presumption of law that from evidence presented D had a duty
to take notice of, even if D did not actually take notice of
1. Look to evidence
iv. Res ipsa loquitur the thing speaks for itself
1. P must invoke in the pleadings if with RIL instruction
2. Judge decides if RIL instruction given
3. Unknown negligent act
a. Instrumentality in exclusive control of D
b. Act wouldnt have occurred without negligence
4. Effect (based on jurisdiction)
a. Inference of negl jury still decides if negl or no negl
b. Rebuttable presumption jury finds nelg if D doesnt refute (burden shifts to
D)
c. Preponderance of evidence same as (b), but higher standard for D
5. Policy D has superior knowledge of circ and facts at time of negl act, use RIL to
bring out Ds knowledge
III.

Cause
a. Negligent act must in fact cause the injury
b. Cause in Fact or But for cause
i. Typically only one but for cause
1. In contrib., the but for cause is different because there are 2 negligent acts claimed
ii. Standard of more likely than not (>50%)
1. Mere possibilities or speculation not enough
2. Possibilities may get evidence entered, but still must meet burden of proof
3. Remember on counter-claim, burden of proof shifts
4. Exception decrease in chance of survival for med mal
a. Injury is decreased chance at survival, not death
iii. Expert testimony
1. Frye test
a. Testimony based on generally accepted science
2. Daubert test
a. Relevant to issues in the case
b. Reliable
i. Based on scientific method (reproducible)
ii. Peer review
iii. Supported by objective sources
iv. Based on independent or pre-litigation research
iv. Concurrent causes
1. Cause AND cause -> Injury
a. Causes insufficient alone
b. When separate negligent actions combine to produce injury, both parties are
responsible for the entire results
2. Cause OR cause -> Injury
a. Either cause sufficient on its own (use substantial factor test)
b. When separate negligent actions occur, either of which would have produced
the injury, both parties are responsible
c. Policy reason: want P to be compensated, Ds would both blame other D if
did not find this way
d. Concert of action: burden of proof shifts to Ds to each prove they were not
the cause
3. Market share liability
a. Ds liable for their market share
b. Burden shifted to D to prove each was not cause to this P

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IV.

4. Eggshell P D must take P as he finds them


a. Liable for damage or aggravation of existing injuries
b. Some courts extend to mental injuries
c. Proximate Cause
i. Basics
1. A policy decision made to deny action based on logic, common sense, policy,
precedent, administratively possible or convenient
2. Left to jury to decide if cause should be held responsible for injury
ii. Result chain
1. Not used in isolation, but if chain is short, generally foreseeable
a. Once negligent act occurs, D is generally liable for direct results, even if
amount of damage is not anticipated
2. Intervening causes
a. If an event is so highly extraordinary that it breaks the chain, labeled a
superseding cause
b. Jury determines
c. Illegal and intl acts may be superseding cause, but dont have to be
i. Mn rule: act of suicide is not superseding cause
iii. Rescue
1. In general, rescue does not break chain on PC grounds
a. Still must show PC, but rescue is foreseeable
2. Conditions or rescue
a. D was negligent to person rescued, and negligence caused the peril
b. Peril or appearance of peril was imminent
c. RP concludes peril existed
d. Rescuer acted with reasonable care in the rescue
d. Zone of Foreseeability
i. Risk reasonably to be perceived by D defines the duty to be obeyed
ii. Matter of law to be decided upon by court to limit PC
iii. Extends around D
1. Cant plan for what we can not foresee
iv. Do facts place the situation in the zone?
1. Specific person, specific event specific injury
v. Are the consequences reasonably foreseeable, therefore not interrupting the chain?
1. If not, if one event/person/injury highly extraordinary, break the chain
vi. Often a matter of public policy to expand or contract the zone
vii. Used to help make sure the proper party is in court being sued
e. Comparison of cause in fact and proximate cause
i. Cause in fact
1. Whether cause exists
2. Experts needed
ii. Proximate cause
1. Whether cause is significant
a. Other items in chain may be more legally significant and therefore break the
chain from the but for cause
2. No experts, a matter of logic and fairness for jury to decide
f. Comparison of proximate cause and zone of foreseeability
i. Proximate cause
1. Question of fact to be decided by jury
2. Different for each set of facts surrounding a case
ii. Zone of foreseeability
1. Question of law to be decided by court
2. Will be applied to each new set of cases
3. Instrument by which court implements public policy arguments
Damages

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V.

a. Four underlying principles of damages


i. Restore plaintiff to pre-injury status
ii. All damages must be reduced to a dollar amount (discounted to present value)
iii. All damages awarded as lump sum on day judgment is returned
iv. Judicial review limited, but allowed for cases where no reasonable jury could have found
based on evidence in record (de novo for punitive)
b. Types
i. Nominal
1. Minimal in amount, acknowledge a wrong was committed
ii. Compensatory
1. Special damages
a. Out of pocket expenses, lost earnings, medical expenses
2. General damages
a. Pain and suffering, ED, loss of enjoyment
b. Person must be conscious to recover P&S
iii. Punitive
1. By statute, some to all may go to state
2. Must have compensatory as well unless intentional tort
3. Suggestion for limit at quadruple in most cases compared to compensatory
4. Factors to consider (need at least 1, prolly 2)
a. Physical vs. economic harm
b. Indifference or reckless disregard of others health & safety
c. Conduct targeted at financially vulnerable
d. Repeated conduct
e. Intentional malice, trickery, deceit
5. Higher standard of proof clear and convincing
c. Collateral sources
i. Typically not allowed to discount Ds award by collateral funding
d. Mitigation
i. P compensated as if had taken reasonable steps to mitigate
e. Attorney fees
i. Typically based on contingency for P, hourly rate for D
ii. Must come out of judgment unless stipulated as punishment by court
Defenses
a. Contributory negligence
i. Complete defense
ii. Failure to act as a reasonable person towards ones self
iii. Affirmative defense
1. P must prove duty, breach, cause (but for and prox), damages
2. Contrib act is different than Ds negligent act
iv. Exceptions
1. Last clear chance
2. Ds conduct was intentional
3. D was grossly negligent
4. Ps negligence was remote
v. Good law only in Alabama, North Carolina, Maryland, Virginia, and DC
b. Comparative negligence
i. Pure comparative
ii. Modified comparative
1. Modified 1 (P not > 50%)
2. Modified 2 (P not >49%)
3. Many modified retain exception because contrib. influence
4. View modified as contrib. with bar changed from 1% to 49-50%
iii. Fault allocated by jury
iv. Affirmative defense
1. P must prove duty, breach, cause (but for and prox), damages

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2. Contrib act is different than Ds negligent act
Assumption of the risk
i. Explicit or express
1. Is the injury within the scope of the clause
2. Is the clause against public policy
a. Look at good/service being bargained for necessity? Position of power or
authority?
3. Complete bar to recovery
ii. Implicit
1. 3 factors:
a. Knowledge of particular risk
b. Appreciation of magnitude
c. Voluntary encountering the risk
2. Does not apply to rescue doctrine
3. Consumed by comparative negligence in most jurisdictions
d. Statute of limitations
i. To start the statute two elements necessary:
1. All elements present
2. Discovery - elements known or should have been known by P
ii. Stop the statute if:
1. Incapacitation
2. Minors (dont start until of legal age or bring ad litum)
e. Statutes of repose
f. Immunities
i. General
1. Availability of insurance is central to the stripping away of immunities
2. General trend away from immunities in general
3. Conferred solely on basis of status, not conduct
ii. Husband/Wife eliminated in most states
iii. Parent-child maintained in most states
iv. Charitable organizations
1. Charitable organization disappearing
2. Religious organization often protected by statute
3. Old policy overall goal of compensation so no drain on society not met by taking
money from charity
v. Employers
1. No tort liability because compensation under workers comp
vi. Sovereign immunity
1. Local govts eliminated
2. State & Fed by statute
a. Discretionary functions (policy decisions) immune
b. Ministerial functions (execution or implement policy) eliminated
Defendant issues
a. Always need to answer:
i. Who to sue? Sue serially, some Ds, all Ds
ii. What to sue for? How far back in causal chain to get all Ds.
b. Joint and several liability
i. All defendants are jointly responsible for 100% of the damages and are individually
responsible for the 100%
1. Always define severally on the exam
ii. When to apply J&SL
1. Concern of action
2. Indivisible injury
3. Special relationship or common duty
iii. Awarding damages
c.

VI.

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c.

1. Traditionally 2 Ds, each paid judgment


2. Modern each D pays % fault
3. No P negligence
a. Each D responsible for 100% of judgment
4. Comparative with J&SL
a. Each D responsible for (100%-Ps share) of judgment
5. Comparative with pure apportionment
a. Each D responsible only for % fault assigned
iv. Movement to abolish or limit J&SL
v. Only one satisfaction
1. Discharges all other tortfeasors responsibility
vi. Mary Carter agreements
1. Settling D stays as D and agrees to testify against remaining Ds
vii. Release
1. Traditional release of one joint tortfeasor is a release of all
2. Modern interpret releases as covenants not to sue, retain claim so do not release
all tortfeasors
viii. Contribution
1. After satisfaction, Ds can seek contribution from each other
2. Intentional tortfeasors denied contribution
3. Indemnity one tortfeasor completely and totally repays the other
Vicarious Liability
i. Need to answer two questions:
1. Is the person an employee?
2. Did the act occur in the scope of his or her employment?
3. The answer to both must be yes to apply vicarious liability
ii. Vicarious liability provides for liability even though no question of fault
1. Solely based upon the status of the employer to the person in question
2. Negligent act is only that done by employee
a. Negligence in hiring employee or independent contractor is a separate count
but should be pursued
iii. Scope of employment
1. No liability for coming or going to/from work
2. Look at several factors to determine significant or slight deviation
a. Intent of employee
b. TPM of deviation
c. Time taken on detour
d. Scope of employment duties
e. Whether act was reasonably expected by employer
f. Level of freedom employee allowed in performing job responsibilities
iv. Independent contractors
1. Determination of independent contractor
a. Ownership of tools of trade
b. Control company has over employee within job
c. Regular hours and benefits (sick leave, vacation, etc)
2. No vicarious liability for work performed by independent contractors
a. Exceptions:
i. Non-delegable duties
1. Generally hazardous activities
2. Insurance policy concerns
ii. Apparent authority
1. Due to uniform, or other reason for reasonable belief as
employee
v. Statutes providing for liability of vehicle owners
vi. Joint enterprises

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VII.

VIII.

1. Liability for all involved in joint enterprise


a. Must be involved in J.E. at time of the negligent act
b. Four part test to determine
i. Express or implied agreement
ii. Common purpose to be carried out
iii. Community or pecuniary interest in the purpose
iv. Equal right to a voice in the direction leading to an equal right of
control
c. Want joint enterprise to have insurance to spread the cost
d. Strict Liability
i. Two factors
1. Dangerousness of the activity (ultra-hazardous)
a. Based on activity, not thing
2. Location in which it is performed
ii. Question of law for the judge to decide
iii. P must show:
1. Risk of abnormally great harm should Ds safety efforts fail
2. Virtual impossibility of D to eliminate risk even with utmost care
3. Risk of harm or injury to P is caused by the hazards which make risk ultra-hazardous
iv. Limitations
1. Harm must be type of harm within foreseeable zone
a. No strict liability for unforeseeable acts of God
2. Risk must also be within the foreseeable zone
v. Now typically dealt with through fault-based negligence
1. Still used in:
a. Blasting
b. Poisons and crop chemicals
c. Airplane damage for assents, descents, and items fallen out
d. Wild animals (but look to negligence and statutes first)
vi. No strict liability towards trespassers
vii. Strict liability towards invitees & licensees
Statutes for causes of action
a. Wrongful death
i. Brought by heirs
ii. Damages for lack of income from death to natural death
iii. Jury allocates damages among beneficiaries
iv. Creditors of estate do not have access to proceeds
b. Survival action
i. Brought by estate
ii. Cause of action descendant would have had if lived
1. Includes pre-impact fright damages
iii. Proceeds go to estate
iv. Creditors have action to proceeds
Policy thoughts:
a. Always start with compensation & deterrence goals
b. Social relationships (immunities, extension of duty)
c. Imposition of tort law on other areas of law
i. Criminal activities and safety
ii. Duty due to contract
d. Economics
i. Role of insurance in tort law
ii. Best position to bear the burden
iii. Predictability, efficiency
iv. Influencing good business decisions and practices
e. Political considerations (sovereign immunity)
f. Flexibility

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g. Administration of justice vs. judicial efficiency
h. Impacts of technology on tort law