General Consideration for All Tort Cases Flashcards
(27 cards)
Vicarious Liability
Respondeat Superior: G/R
Employers are liable for torts or employees committed within the scope of employment. Generally no liability for independent contractors
Vicarious Liability
RS: Intentional Torts
GR: ITs are not within the scope of employment.
Exceptions:
1. Force is authorized
2.Friction is generated by this type of performance
3. Employee is trying to further employer’s business.
Vicarious Liability
Automobile Owners/Drivers
GR: Automobile owners are NOT vicariously liable for the torts of other drivers.
Exceptions:
1. Family Car Doctrine: Household member using with permission
2. Permissive Use Doctrine: Anyone using with permission
Vicarious Liability
Parents/Children
GR: Parents are NOT vicariously liable for the torts of their children.
Exception: Intentional torts up to a limited dollar amount by statute.
Vicarious Liability
Bar Exam Note
Must be able to recognize when the D will be vicariously liable and when they will be liable for own negligence. eg. lending car to drunk driver– not vicariously liable (if no statute applies) but are liable for own negligence for lending car.
Parties - Multiple Ds Issues
Releases
Rule: A release does not release other tortfeasors unless it expressly does so.
Parties - Multiple Ds Issues
Joint and Several Liability
Rule: where multiple acts cause indivisible injury, each D will be potentially liable for the ENTIRE JUDGMENT AMOUNT
TIP: Assume that joint tortfeasors are jointly and severably liable (unless expressly says otherwise).
Parties - Multiple Ds Issues
Contribution and Indemnification
It is used where D, because of joint and several liability, has paid more than his fair share of the judgment and wants the other Ds to contribute or indemnify.
Parties - Multiple Ds Issues
Contribution
Rule: Where Ds are more or less equally responsible, they will ultimately share the judgment amount equally. As long as the D from who contribution is being sought is also liable.
It is not applicable to Intentional Torts.
Parties - Multiple Ds Issues
Indemnification
Rule: Can get everything back from other Ds Grounds: 1. Other D is a lot more responsible 2. Vicarious Liability 3. Indemnification in product cases.
Parties - Multiple Ds Issues
Comparative Contribution**
Rule: D’s will ultimately split up judgment according to “relative fault.”
Rem. J/S liability will still apply–so each D will own P if it comes down to it, the entire amount.
Tip: CC effectively eliminates traditional contribution and the first ground for indemnification.
Survival and Wrongful Death
These are derivative recoveries. Meaning, you will stand in no better position than decedent would have stood in had she lived. So contrib. comp. fault rules apply.
Tort Immunities
Intra-family - OUT
Charitable - OUT
Governmental– exists but statutory
Tort Immunities
Governmental v. Proprietary
Rule: Immunity is available for governmental functions. NOT for proprietary.
To determine proprietary: ask whether a private person normally perform function. if yes-then prop.
KANSAS: Vicarious Liability
*Automobile Owner for Driver
KS has never adopted the family car doctrine
KS: VL
* Parent for child
By Statute in KS, parents are liable for up to $5,000 in actual damages for any willful and malicious personal injury or damage to property by their minor children.
If injury or damage is result of parental neglect the 5k limit does not apply.
Recovery for bodily injury is limited to actual medical expenses.
Parental liability imposed when both the act and its harmful result were intended
KS: VL
* Tavernkeepers
NO DRAM SHOP ACT
NO liability or coa in favor of those injured as a result of a violation of the liquor laws.
* can’t blame people who sell or furnish liquor for damages and injuries caused by drunk people.
KS: Multiple D Issues
*Joint and Several Liability – stat limitations
KS comparative negligence statute abolished joint and several liability and replaced it with the proportionate liability.
J&S Liability is reserved for ITs
Also, ct will not reduce the fault of a negligent tortfeasor by the intentional misconduct of another from whom it had a duty to protect the P. (eg. damages from school’s negligent failure to report suspected child abuse will not be reduced by intentional fault of abuser).
KS: Survival and Wrongful Death
*Survival of Tort actions
In KS, tort actions for personal injury, injury to real or personal property, and fraud survive the death of either P or D. However, actions for libel, slander, malicious prosecution, and nuisance abate on death of either party.
KS: Wrongful Death– Measure of Recovery
In Ks, wrongful death statute allows recovery of damages for economic loss to beneficiaries without limitation and allows damages for noneconomic loss with a cap of $250K per decedent, regardless of the number of beneficiaries.
The $250K limit on noneconomic loss is applied after any deduction for the decedent’s comparative fault.
KS: Tortious Interferences With Family Relationships
*Husband-Wife
In KS, the right to recover for loss of consortium vests in the spouse who files an action for personal injuries, not the spouse who actually suffers the loss of consortium.
The award of damages is to the P for the benefit of the spouse.
KS: Tort Immunities
*Intra-Family
KS has abolished family tort immunities
- h/e parents are immune from liability when the child’s claim relates to the exercise of parental discretion or authority.
KS: Tort Immunities
* Governmental Tort Immunity– State govt and municipalities
KS Torts Claims Act applies to all state and municipal govt entities– Act hold the govt entity liable for all negligent and wrongful acts or omissions of its employees in the course and scope of their employment in same manner that a private person is liable for the torts of his employee.
KS: Tort Immunities
Govt Tort Immunity–Exceptions
Immunity is retained for:
1) discretionary acts and policy decisions
2) failure to adopt or enforce a written personnel policy protecting a person’s health or safety, unless a duty of care independent the policy is owed to the P;
3) Assessment and collection of taxes;
4) Malfunction or removal of traffic signs or signals unless the agency had notice an failed to repair or replace the sign within reasonable amount of time.
5) Failure to make a proper health or safety inspection of private property;
6) Failure to provide, or the method of providing, police or fire protection; and
7) Claims from injuries resulting from the use of public property intended or permitted for recreational purposes, unless the entity or employee was grossly and wantonly negligent.
