General tort considerations & misc. topics

Question 1

Define vicarious liability

Answer 1

Liability that is derivatively imposed. Person A commits tort against person B, and person C is vicariously liable for person A’s conduct.

Question 2

There are 7 situations in which you have vicarious liability

Answer 2

1. Respondeat superior
2. independent contractors
3. Partners and joint ventures
4. Automobile owner for driver
5. Bailor for bailee
6. Parent for child
7. Tavernkeepers

Question 3

A master or employer will be vicariously liable for torts committed by her servant or employee if the tortious act occurs ____

Answer 3

Within the scope of the employment relationship

Question 4

1. If an employee makes a ______ deviation from his employer’s business for his own purposes, he is still acting within the scope of his employment.
2. What is this called?

Answer 4

1. Minor

2. Frolic and detour

Question 5

Generally, intentional torts committed by an employee are not within the scope of employment. Name 3 exceptions.

Answer 5

1. Force is authorized in the employment, like a bouncer.
2. Friction is generated by the employment, like a bill collector.
3. The employee is furthering the employer’s business, removing rowdy customers from the premises.

Question 6

When an employer negligently selects or supervises their employees or independent contractors, the employer is vicariously liable for their employees’ and independent contractors’ conduct. True or false?

Answer 6

False. The employer is liable directly for his own negligence in selecting or supervising the employee or independent contractor.

Question 7

In general, a principal is not vicariously liable for tortious acts of an independent contractor. There are 3 broad exceptions, name them.

Answer 7

1. The independent contractor is engaged in inherently dangerous activities, like blasting or excavating by a public sidewalk.
2. Where there is a non-deligible duty for public policy reasons, like the duty to use due care in building a fence around an excavation site
3. Injury to invitee on property

Question 8

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member when?

Answer 8

When the tortious conduct is committed in the scope and course of the affairs of the business.

Question 9

Generally, an automobile owner is not vicariously liable for tortious conduct of another person driving his car. There are, however, 4 theories under which a car owner can be held liable for another drivers tortious conduct in his car. Name the 4

Answer 9

1. The family car doctrine: immediate family and household members who are driving with permission.
2. Permissive use: anyone driving with the owner’s consent -> applies in NY
3. Negligent entrustment. (This is not vicarious liability.)
4. When someone drives your car running an errand for you -> they’re your agent

Question 10

The bail or is not vicariously liable for the tortious conduct of the bailee. However, the bail or can be liable for?

Answer 10

Negligent entrustment. This is not vicarious liability

Question 11

Often by statute, states make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. There are 2 other ways parents can be found liable for their child’s conduct

Answer 11

1. The child is acting as an agent for the parent and commits a tort
2. The parent is liable for his or her own negligence in allowing the child to do something, like use a dangerous object.

Question 12

Tavernkeepers were not liable at common law for their customers intoxication. This is not vicarious liability, but most modern states have enacted ________ Acts or courts imply it based on the negligence of the tavern keeper

Answer 12

Dramshop. This is just ordinary negligence, serving people who are already drunk or serving a minor.

Question 13

When there are multiple defendants, joint and several liability means?

Answer 13

It means that each defendant is liable to the plaintiff for the entire damage incurred. If the injury is divisible each defendant is liable only for the identifiable portion.

Question 14

When defendants are acting in concert injury plaintiff, each of them is?

Answer 14

Jointly and severally liable.

Question 15

Satisfaction with respect to joint tortfeasors means what?

Answer 15

It means full recovery of payment by plaintiff, which is satisfaction. Until there is full satisfaction, plaintiff may proceed against all liable parties.

Question 16

If one twit tortfeasor is released among more than 1 joint and severally liable tortfeasors, are the others released?

Answer 16

No.

Question 17

What is the difference in contribution and indemnity?

Answer 17

Contribution is where both defendants have a measurable degree of culpability. Indemnity applies when one party is much more responsible than the other.

Question 18

Is contribution available for intentional torts?

Answer 18

No

Question 19

Where a few defendants are jointly and severally liable and one defendant pays more than his share, he is entitled to?

Answer 19

Contribution

Question 20

Define comparative contribution

Answer 20

And allocation of relative fault for the injury

Question 21

With respect to apportionment of liability, when is divided evenly among defendants it is called the ____ shares?

Answer 21

Equal shares

Question 22

Indemnity involves _____ between or among tortfeasors

Answer 22

Shifting the entire loss between or among tortfeasors

Question 23

What are the 3 circumstances under which indemnity is available?

Answer 23

1. By contract
2. In vicarious liability situations
3. Under strict products liability

Question 24

Generally, tort actions survive the death of one or more parties. However, _____ tort claims expire upon the victim’s death

Answer 24

Towards invading intangible personal interests, like defamation, invasion of right to privacy, malicious prosecution

Question 25

1. Who may bring a wrongful death suit?
2. Recovery is allowed only to the extent that ___?
3. Role of contributory negligence?

Answer 25

1. May be brought by spouse and next of kin
2. Recovery allowed to the extent deceased could have recovered in action had he lived.
3. Contributory negligence of decedent or of potential beneficiaries reduces recovery in comparative negligence states

Question 26

Tortious interference with family relationships may be brought with respect to which 2 types of relations? Define each

Answer 26

1. Husband-and-wife may bring action for interference with consortium and services based on defendants tortious conduct against other spouse
2. Parent and child: a parent may sue for loss of child services due to defendants tortious conduct, but a child may not sue for tortious injury to the parent.

Question 27

3 types of immunities to tort claims

Answer 27

1. Intra-– family tort immunities (with regard to personal injury). However most states have abolished husband – wife immunity.
2. governmental tort immunities
3. Charitable immunity (most jurisdictions have eliminated)

Question 28

Under the Federal tort claims act, the United States has waived immunity for tortious acts. But immunity still attaches for 9 potential tortious actions. Name them

Answer 28

1. Assault
2. Battery
3. False imprisonment
4. False arrest
5. Malicious prosecution
6. Abuse of process
7. Libel and slander
8. Misrepresentation and deceit
9. Interference with contract rights

Question 29

Where state or local governmental immunity has been abolished, the public duty rule provides what?

Answer 29

It provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the government body and citizen.

Question 30

Immunity is not waived for government actions that are characterized as ______

Answer 30

Discretionary

Question 31

Liability attaches for ____ actions of government

Answer 31

Ministerial

Question 32

Public officials carrying out official duties are immune from tort liability for 1. ____ acts done without 2. ________.

Answer 32

1. Discretionary acts

2. Done without malice or improper purpose

Question 33

What does it mean to say that an action for interference with family relationships is “derivative”?

Answer 33

Recovery for interference depends on the potential success of the injured family member’s own action. Thus, any defense that would prevent recovery by the injured family member will also prevent recovery in the derivative action for interference with a family relationship. Furthermore, a defense against a family member seeking such a derivative recovery may also defeat the action.

Question 34

A rescuer is a foreseeable plaintiff so long as?

Answer 34

So long as the rescue is not WANTON considering all factors (including degree of emergency, excitement, speed of rescue, etc.)

Question 35

Can Assumption of risk be invoked against a rescuer?

Answer 35

Yes, considering all circumstances. Meeting a rescuer has to undertake WANTON rescue in order to assume the risk.

Question 36

Respondeat superior for intentional torts of D? Generally and 3 exceptions

Answer 36

Generally no, except where

1. use of force is in scope of employment (bouncer)
2. employee in animosity job (repo man)
3. if tort done in misguided effort to further employer’s purposes

Question 37

If you give your kid a gun or give a drunk your car keys, are you vicariously liable?

Answer 37

No. You’re directy liable for negligent entrustment or negligent supervision. You didn’t act reasonably.

Question 38

Difference b/t vicarious liability and direct liability? Look for the principal to be directly liable for 3 things

Answer 38

Look for the principal to be directly liable for:

1. negligent supervision
2. negligent hiring
3. negligent entrustment

Question 39

2 situations where out of pocket gets indemnification:

Answer 39

1. vicariously liable defendant gets indemnity from active tort feasor
2. retailer gets in indemnification from manufacturer in SL products case

Question 40

injury to spouse, you get loss of consorsium for 3 items?

Answer 40

lets uninjured spouse recover for

1. loss of household services
2. loss of society (partnership)
3. loss of sex