Substance

Question 1

Vicarious Liability

Answer 1

Principals/Employers are vicariously liable for the negligence of their employees, committed while the employee is acting within the scope of their agency

→ vicarious liability for detour but NOT frolic
→ NOT a defense for employee (employee would still be liable)
→ employee/agent would be liable to principal as well through indemnity

Question 2

Principal vicariously liable for NEGLIGENCE of independent contractor when:

Answer 2

1. IC is engaged in inherently dangerous activities (usually blasting) OR
2. The duty is non-delegable (duty to keep premises safe, car in good condition, etc)

(Ex: motorcycle dealership running a competition; part of contractual obligation is for them to hire emergency technicians; this is NOT a non-delegable duty — if medical technicians commit negligence there is no vicarious liability there)

Question 3

Principal liable for INTENTIONAl torts of agents (both employees and independent contractors) when

Answer 3

1. Force is authorized by employment (nature of job authorizes force like bouncer or security guard)
2. Friction is generated by employment (baseball pitcher getting heckled by other team’s fans)
3. Employee/agent furthering business of employer (discuss type of authority!!!)

Question 4

3 types of authority

Answer 4

1. Express
2. Apparent
3. Implied

Question 5

Apparent Authority

Answer 5

Principal’s words or conduct would lead a reasonable person in the third party’s position to believe that the agent was authorized to act, even if the principal and the purported agent had never discussed such a relationship

(usually displayed signs)

Question 6

Implied Authority

Answer 6

Authority an agent has by virtue of being reasonably necessary to carry out his or her express authority

Question 7

Transferred Intent

Answer 7

Can take intent of actor to commit one of the following torts; and if one of the other results, that intent is going to be enough

i. assault
ii. battery
iii. false imprisonment
iv. trespass
v. trespass to chattels

Question 8

Assault

Answer 8

1. A volitional act (conscious muscle movement)
2. done with the intent to cause either:
   i. harmful or offensive contact that OR
   ii. an apprehension of imminent harmful or offensive contact that —
3. actually and proximately causes the reasonable apprehension of harmful or offensive contact

Question 9

Battery

Answer 9

1. A volitional act
2. done with the intent to cause either:
   i. harmful (any change in physical condition) or offensive (offensive to a reasonable person under the circumstances) contact that— OR
   ii. an apprehension of imminent harmful or offensive (direct or indirect) contact that —
3. actually and proximately causes harmful or offensive contact to the person of another

Question 10

False Imprisonment

Answer 10

1. An act intending to confine someone within boundaries fixed by the actor
2. directly or indirectly resulting in such confinement, and
3. the confined person is either conscious (aware) of the confinement or harmed by it

→ defenses: shopkeeper privilege or crime prevention

Question 11

Shopkeeper Privilege (defense to false imprisonment)

Answer 11

1. Reasonable grounds to believe theft occurred
2. may detain one for a reasonable time and in a reasonable manner to ascertain what has happened

Question 12

Crime Prevention - Misdemeanor (defense to false imprisonment)

Answer 12

1. Reasonable belief crime involving disturbing the peace occurred +
2. must have been in presence of arresting person

Question 13

Crime Prevention - Felony (defense to false imprisonment)

Answer 13

Reasonable belief felony has occurred, but need NOT be committed in presence of arresting person

Question 14

Trespass to Chattels

Answer 14

1. An act which is an intermeddling or dispossession
2. Of the personal property
3. Of another
4. Which causes harm to, or the loss of use of, the personal property

→ TALK ABOUT CONVERSION TOO

Question 15

Conversion

Answer 15

1. When a person uses or alters a piece of personal property belonging to someone else without the owner’s consent
2. Remedy: The degree of interference for conversion must be so serious that the tortfeasor, or person accused of committing the tort, may be required to pay the full value of the property

→ TALK ABOUT TRESPASS TO CHATTELS TOO

Question 16

Intentional Infliction of Emotional Distress

Answer 16

1. Extreme and outrageous conduct that (objective)
2. Causes severe emotional distress (subjective)

→ No requirement for actual/physical harm

Question 17

3rd Party Intentional Infliction of Emotional Distress

Answer 17

1. Plaintiff must be closely related to harmed person;
2. see the harm inflicted; and
3. 3rd party has to be aware of the relationship between Plaintiff and the person who was harmed (have to intend to do the conduct)

Question 18

Abuse of Process

Answer 18

i. Use of a legit civil process (service, filing of complaint, discovery, etc)
ii. for a wrongful purpose (harass, waste time, etc)
iii. and an act or threat against the plaintiff to accomplish the wrongful purpose

→ prohibits the use of any form of process to bring about a result other than that for which the process was intended

Question 19

Malicious Prosecution

Answer 19

i. Initiation of civil, administrative, or criminal proceedings against plaintiff (eg causing police or DA to start criminal proceedings)

ii. without PC
a. (ie person is aware of facts that would NOT support this)
b. if brought against lawyer, standard is whether reasonable person would believe matter had merit

iii. for a wrongful purpose

iv. and for there to be a favorable termination of the proceedings on the merits in favor of current plaintiff (defendant in original case)
1. this includes a dismissal with prejudice against defendant who becomes a plaintiff

Question 20

Different types of Duty

Answer 20

1. Ordinary duty to a foreseeable plaintiff
2. Specialized duties (landowner/possessor; rescuer; emergency)
3. Statutory duty (negligence per se)

Question 21

Ordinary Duty (to a foreseeable plaintiff)

Answer 21

1. When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person
2. Plaintiff in zone of danger of negligent act

→ No duty to foresee a criminal act unless breach of duty itself foreseeably increases the risk of the criminal act occurring

Question 22

Ordinary Duty (non-foreseeable plaintiff)

Answer 22

When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person

Split:
1. Cardozo - plaintiff must be in zone of danger
2. Andrews - foreseeability of harm/whether harm is too attenuated from cause

Question 23

Duty (Possessors of Land)

Answer 23

Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial condition on the land

Exceptions:

1. Natural conditions: Duty to maintain your natural stuff like a tree so that it doesn’t harm someone off premises (tree falls on neighbor’s house – there is duty)
2. Artificial conditions:
   i. Duty to protect from unreasonable dangerous artificial conditions
   ii. Duty to take precautions to protect persons passing by from dangerous condition

Question 24

Invitee

Answer 24

On premises for business purpose of owner/possessor

Question 25

Licensees

Answer 25

On premises for own purpose — usually social, but there with permission (includes guests of a tenant)

Question 26

Trespassers

Answer 26

On premises without consent

Question 27

Duty to Invitee

Answer 27

Duty to inspect, discover, repair, and protect against known or discoverable dangers 1. Possessor know, or by the exercise of reasonable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and 2. Should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it

Question 28

Duty to Licensee

Answer 28

Duty to repair and protect against known dangers 1. Possessor knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees; 2. should expect that the licensees will not discover or realize the danger; (BUT no duty to inspect; no duty to discover a latent defect; no added duty to discover something possessor otherwise would not have known about) 3. fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved; and 4. licensees do not know or should have reason to know of the condition or the risk involved

Question 29

Duty to Trespassers

Answer 29

Duty only extends to ARTIFICIAL dangerous conditions 1. Known Trespassers: Duty to warn of artificial NON-obvious dangerous conditions maintained by landowner 2. Duty not to use willful and wanton conduct

Question 30

Duty (Attractive Nuisance)

Answer 30

1. Landowner knows or should know of dangerous condition 2. Owner knows children are frequenting the area 3. Dangerous condition likely to cause harm due to child’s inability to appreciate risk 4. Expense of remedy slight compared to level of risk (would remedy be inexpensive compared to the harm)

Question 31

Firefighter's Rule

Answer 31

Bars firefighters/police from recovering for injuries caused by special risks of doing job

Question 32

Common Carriers

Answer 32

Heightened duty of care, but NOT strict liability (bus, airplane, anything carrying a lot of people):

Question 33

Rescuers

Answer 33

Duty to rescuers if need for rescue is due to rescuee’s own negligence

Question 34

Trade Custom

Answer 34

Custom/usage in industry or trade may be evidence of a duty or lack of duty (custom sets the standard of care, so custom sets a duty)

Question 35

Specialized Duty (doctors, etc)

Answer 35

Objective standard

Question 36

Negligent Infliction of Emotional Distress

Answer 36

Duty to prevent NIED if plaintiff: 1. In zone of danger OR 2. There is physical harm → if neither, check if exception (4)

Question 37

4 Exceptions to NIED Zone of Danger/Physical Harm requirement:

Answer 37

1. Plaintiff and victim closely related, plaintiff present and perceived the injury 2. Duty arises from special relationship a. Doctor says to 80 year old patient, good news you’re pregnant (this statement would cause emotional distress) 3. Mishandling of corpse of relative a. Dad has passed away; son picks up dad’s effects and there’s a foots (can sue for that) 4. Erroneous statement that relative has died

Question 38

Breach

Answer 38

Defendant’s behavior falls short of that level required by the applicable standard of care

Question 39

Res Ipsa Loquitor

Answer 39

1.Defendant had control of the instrumentality of the harm 2.Harm would not have occurred in the absence of negligence → Discuss ONLY if the act or omission constituting breach is unknown (substitute of evid of breach when there is no evid of breach)

Question 40

Negligence Per Se

Answer 40

Evid tool to establish duty and breach — NOT an independent cause of action 1.Statute or ordinance must be a criminal statute; a.Includes traffic and safety and regulatory infractions 2. The plaintiff must be a member of the class of persons intended to be protected by the statute; and a. Just make a credible argument that’s reasonable and credible 3. The claimed harm must be the type of harm intended to be protected against by the statute → Essay has to give you a STATUTE → A finding of negligence per se results in the conclusive presumption of breach and duty

Question 41

Actual Cause

Answer 41

2 sentences: 1. Shows a connection between the breach of duty and the injury suffered 2. But for Defendant’s breach, plaintiff would not have been injured → The only time it is not the “but for” test is if there are joint causes, any of which alone would have caused the harm. Then you use the “substantial factor” test

Question 42

Substantial Factor Test

Answer 42

If you took one of the causes away, the harm still would have occurred

Question 43

Substantial Factor Test

Answer 43

If you took one of the causes away, the harm still would have occurred

Question 44

Proximate Cause

Answer 44

Does the type of conduct foreseeably increase the risk of the type of harm

Question 45

Harm

Answer 45

1 sentence

Question 46

Contributory Negligence

Answer 46

Bars plaintiffs from recovering for the negligence of others if they too were negligent in causing the harm (unless defendant had Last Clear Chance)

Question 47

Last Clear Chance

Answer 47

1. A negligent plaintiff may recover damages if they can show that the defendant had the last clear chance to avoid the accident. 2. A defendant may also use the doctrine as a defense by showing that the plaintiff had the last clear chance to avoid the accident.

Question 48

Comparative Fault

Answer 48

1. Pure Comparative Fault: The amount of damages that the plaintiff can collect is limited based on the assigned fault determined by the court a. allows the plaintiff to claim damages for the 1% they are not at fault even when they are 99% at fault 2. Non-Pure Comparative: If plaintiff 50% or more at fault, no recovery

Question 49

Assumption of Risk

Answer 49

1. Requires knowing and voluntary assumption of risk 2. Needs more than apprehension of a risk (eg facts state there were warning signs and P sees them)

Question 50

Emergency

Answer 50

Test: Duty to act as a reasonable person would under the same emergency

Question 51

Public Nuisance

Answer 51

1. Common public interest – generally sued on by public agencies 2. Often violation of statute or ordinance 3. No private cause of action unless harm is different in kind from that suffered by public

Question 52

Private Nuisance

Answer 52

1. An unreasonable invasion of another’s interest in the use or enjoyment of his or her land (objective test); 2. The invasion is either: a. intentional or b. unintentional and otherwise actionable as negligence, reckless or abnormally dangerous conditions or activities → Balance the harms unless intentional and unreasonable invasion

Question 53

Trespass

Answer 53

Entry onto or remaining upon land in the possession of another without a privilege to do so created by possessor’s consent or otherwise (requires physical invasion) → Mistake is NOT a defense

Question 54

Trespasser (Necessity)

Answer 54

Where trespasser has the privilege of necessity: (1) Defendant still liable for actual damages but not punitives; and (2) Landowner may not eject trespasser off their property by use of excessive force → Remedy is often injunction

Question 55

Strict Liability (Animals)

Answer 55

1. Defendant owned a wild animal 2. That caused harm to plaintiff of a kind typically due to the wildness of the animal Domestic animal is NOT strict liability — it is negligence

Question 56

Strict Liability (Abnormally Dangerous Activities)

Answer 56

1.Carrying on of an abnormally dangerous activity a. High degree of risk or harm b. Gravity of the harm (lots of people and things being burned down) c. Inability to eliminate the risk by using reasonable care 2. Which causes harm 3. The risk of which make the activity abnormally dangerous 4. Uncommon occurrence in community a. Generation of electricity NOT an abnormally dangerous activity bc through exercise of reasonable care, can prevent harm