MBE Subjects I_Torts Outline

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TORTS

 Checklist for every torts question:

23%M )$+

Who is the plaintiff? Who is the defendant/who are the defendants? Who are the responsible parties? parties? What is the plaintiff’s injury or injuries? What legal theory/theories can the plaintiff assert? Make sure that it is a torts question I. INTENTIONAL TORTS

A.

Elem Elemen ents ts of Inte Intent ntio iona nall Tor Torts ts !"# $ %&

'

Voluntary Act

a

(efinition:

EXAMPLE: $f )o* pushes (irk into +riscilla and +riscilla sues (irk, there is no liability for an intentional

tort because (irk did not engage in any voluntary act EXAMPLE: (ina, during a sudden epileptic sei-ure, hits +oinde.ter While (ina did not intend the har*,

there is also no liability because there was no voluntary act by (ina 

Intent

a

0or *ost *ost intentio intentional nal torts torts,, intent intent is is establi established shed if the the defenda defendant nt eithe either: r: !'&

!&

1

Causation

a

b

+ro. +ro.i* i*at ate e caus cause e in int inten enti tion onal al tor torts ts::

4

Harm

a

Varies based on the ind of intentional tort.

b

!ays to establish harm in intentional torts:

!'&

!&

5

"o Pri#ile$e or %efense

H&P'THETICAL

(ell sees his archrival +ratt walking across the street %lthough (ell thinks it’s unlikely he can throw a stone that far, (ell picks up a nearby stone and throws it at +ratt 6as (ell acted with purpose/intent such that he *ay be found liable for tortious conduct?

H&P'THETICAL

(arla, due to boredo*, decides to shoot her 77 gun into a passing co**uter train 8he doesn’t want to hurt anyone, but knows that the trains at that hour will be packed with passengers 8he shoots her gun at a full passenger car passing by her, hitting +la. 6as (arla acted with intent such that she *ay be found f ound liable for tortious conduct?

H&P'THETICAL

8i.9year9old 7rian (ailey pulls a chair out fro* where he knows Mrs arrett is sitting $f 7rian knew

that it was substantially certain that this would cause Mrs arrett to fall to the ground, has he acted with intent?

H&P'THETICAL

(elbert is late for his )orts class Without looking where he is going, he runs out of the library and collides with +arker 6as (elbert acted with intent?

(.

(attery !"# $ 7&

'

% bat batte terry ar arises ises where here::

a

2le*ents: !'&

!&

!1&



)o esta establi blish sh inte intent, nt, plain plaintif tifff has has to show show eith either: er:

a

b

c

7e sur sure e to dis disti ting ngui uish sh int inten entt fro* fro* *ot *otiv ive e EXAMPLE: +ete co*es into bar review and sits ne.t to (awn and says ;*y neck is killing *e< (awn

says that he has decided to learn how to beco*e a chiropractor and offers to help +ete refuses but (awn grabs his neck and pulls Whether W hether +ete feels better or not, it is a battery and (awn had intent d

Transferred Intent

!'&

EXAMPLE: (orkus throw a rock at 3avier, but the rock *isses 3avier and hits +o*pador instead

+o*pador sues (orkus, and (orkus would be liable because he intended to co**it a battery on 3avier e

Incom)etency

!'&

EXAMPLE: (olores shoots +atty because she thinks +atty is 6itler (olores is liable for battery not

withstanding her insane delusion because she had purpose to cause contact 1

)he har* har*ful ful or or offens offensiv ive e contac contactt ele*en ele*entt is satis satisfie fied d if:

EXAMPLE: +unching %rnold 8chwar-enegger 8chwar-enegger would be enough to constitute battery, even if he is not injured

a

%ny contac contactt that that would would be offensiv offensive e to a reasonab reasonable le person person is is enough enough for for battery battery EXAMPLE: +rissy hates to be touched and believes that when people touch her, they are trying to pass

alien beings into her body (ale taps her on the shoulder and asks her for the ti*e +rissy freaks out and sues (ale for battery (ale was trying to touch her, but it was not har*ful or offensive to a reasonable person !'& $f defendan defendantt knows knows the particul particular ar suscepti susceptibili bility ty of the plainti plaintiff: ff:

b

$t is sufficient for a battery if defendant causes a contact with so*ething close to plaintiff EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant )hey hid ca*eras

and found out that a colleague was urinating into the coffee urn )his would be battery c

=nlike assault, plaintiff need not be aware of the contact EXAMPLE: $f +atsy falls asleep and while she is asleep, 7arney kisses her on the forehead +atsy finds

out the ne.t day and sues for battery 8he would be able to recover 4

+rivileges and (efenses a

C.

Assault !"# $ C&

'

%n assault arises where:

a

2le*ents: !'&

!&

!1&



)o prove intent, defendant *ust: a

b

c

)ransferred intent often arises with:

EXAMPLE: (une wants to scare +i*, so she throws a knife towards +i* but it ends up stabbing hi* in

his leg (une intended to co**it assault but there is also a clai* for battery $ntent for assault satisfies intent for battery EXAMPLE: 7eavis has been harassing (onny at school (onny decides that he wants to end this so he

will scare 7eavis into not picking on hi* (onny finds his father’s loaded =-i and brings it to school with the intent si*ply to scare 7eavis (onny accidentally pulls the trigger just as +recious co*es walking out and gets hit in the right ar* 7eavis can sue for assault +recious can bring an action for battery 1

>easonable apprehension:

E*am)le: 8app worked at a clock repair store Mrs 6ill co*es into the store and finds 8app drunk Mrs 6ill

inquires about getting her clock fi.ed 8app reaches toward Mrs 6ill and asks to pet her and fi. her clock 8he sues for assault $ssue was about how wide the counter was because it deter*ined whether Mrs 6ill could have a reasonable apprehension of a battery 4

$**inence:

EXAMPLE: $f (racula says he will co*e back to*orrow to suck your blood, it is not an assault

5

#ook for ele*ents that negate intent



@ou often have assault and battery together EXAMPLE: )hrowing a water balloon at so*eone creates the reasonable apprehension of a battery !assault&

and then being struck by the balloon is the actual battery a

@ou can have one without the other EXAMPLE: 7attery without assault: EXAMPLE: 8leeping plaintiff is never in apprehension but suffered a battery EXAMPLE: %ssault without battery: EXAMPLE: Aear9*iss case

B

Words alone rarely create an assault EXAMPLE: +arker is walking down a deserted alley and heard a voice saying that they have a gun pointed at

his head )his is enough for an assault even though it was co**itted by words 

Must be an intentional threat of an i**inent battery EXAMPLE: (o* and +at are studying together for the bar e.a* (o* notices that +at has put together

b

$f the the plain plaintif tifff is not not aware aware that that she she is is being being conf confine ined: d:

EXAMPLE: $f during a lecture, all of the doors in the roo* were locked but students did not try to leave,

there is no false i*prison*ent i*prison*ent $f one person tries and cannot get out, there is a false i*prison*ent clai* EXAMPLE: $f a baby is locked in a roo*, the baby probably does not know of the confine*ent $f there

was so*e sort of physical har*, there would be a clai* "therwise, no false i*prison*ent

H&P'THETICAL

(elbert quickly locks +rofessor #ongwinded’s classroo* door during a )orts class, unlocking the roo* an hour later at the end of class 2very student is so engrossed in the lecture that nobody tries to leave the roo* during the class $s (elbert liable for false i*prison*ent?



E.

0alse ar arrest:

Intent Intention ional al Infl Inflict iction ion of Emot Emotion ional al %ist %istres ress s !"# $ 2&

'

$ntent $ntention ional al inflic inflictio tion n of e*otio e*otional nal distr distress ess arise arises s where: where:

a

2le*ents: !'&

!&

!1&

!4&



Mental 8t 8tate: (efendant *ust act with intent to cause severe *ental distress or be reckless in creating the risk of e*otional distress a

$ntentional: !'&

!&

b

>ecklessness:

EXAMPLE: (ora had an ongoing feud with +avala (ora calls +avala, disguises her voice and says ;this

is eneral 6ospital @our child has just been rushed to the e*ergency roo*< +avala suffers severe e*otional distress (ora has the intent for $$2( $t was her goal to cause e*otional distress and knew it was virtually certain EXAMPLE: (ora is at the hospital and walks by the desk where people check in and overhears a

discussion and thinks that one of the nurses is saying that +avala’s child has been rushed to the e*ergency roo* (ora calls +avala )his would suffice for $$2( because it would be a for* of recklessness c

Ao tran transf sfer erre red d int inten entt doc doctr trin ine, e, but: but:

EXAMPLE: (on stabs +aul’s father in front of +aul $f (on knows that +aul is there and knows that his victi*

is +aul’s father and +aul suffers e*otional distress, +aul could recover against (on for $$2( not because of transferred intent, but because (on was reckless

1

)he ele*ent ele*ent of e.tre e.tre*e *e and and outra outrageou geous s conduc conductt is satisfied satisfied if:

a

"ffensiv "ffensive e or insultin insulting g languag language e is generally generally not consid considered ered outrageo outrageous us EXAMPLE: (elilah, in front of everyone, says that +aula’s dress is cheap and ugly +aula is hu*iliated

and has a heart attack fro* e*barrass*ent and sues for $$2( +aula would lose 7

EXCEPTI'",:

!'&

!&

EXAMPLE: (ratt knows that +on is superstitious and releases black cats onto his property and

sends hi* shattered *irrors )his would generally be tolerated, but since (ratt acted to e.ploit +on’s susceptibility, susceptibility, it would be considered $$2( !1&

4

Caus Causat atio ion n iss issue ue that that *igh *ightt ari arise se::

5

8eve 8evere re e*ot e*otio iona nall dis distr tres ess s a

+lai +laint ntif ifff doe does s not not have have to prov prove: e:

b

+lai +laint ntif ifff si*p si*ply ly has has to prov prove: e:

+.

Tres res)ass to Land !"# $ 0&

'

)res )resp pass to land and is: is:

a

2le*ents: !'&

!&

!1&



)o esta establi blish sh inte intent, nt, plain plaintif tifff needs needs to show show that: that: a

b

EXAMPLE: $rene is driving around and gets lost in an unknown area 8he sees (ennis standing on the

sidewalk $rene pulls over and asks (ennis for directions to the freeway entrance (ennis says to take his dirt road to the end, and *ake a left +roperty doesn’t belong to (ennis, but to +rince who has hidden ca*eras 0inds $rene and sues her for trespass +rince will recover because $rene intended to enter that land and (ennis intended to get $rene to enter the land c 1

Mistak Mistake e is not a defen defense se as as to a tresp trespass ass action action

When a person person is is trespassi trespassing, ng, they they are are liable liable for the the full e.tent e.tent of their their har* har* EXAMPLE: $rene is driving carefully across the dirt road, hits a pothole and loses control 8he hits an a-alea

bush worth E'5,FFF 8he is liable for this destruction because it occurred while she was trespassing 4

2ntry:

EXAMPLE: (arla fires a gun across +entiu*’s property )his constitutes trespass because the bullet crossed

the property of the plaintiff

5

+laintiff’s land: a

EXAMPLE: (arla thinks she is crop dusting her own land but the pesticide lands on "wen’s land 6e

has leased the property to )o* )o* can bring a trespass to land action because he is in possession of the land $f per*anent da*age occurred, the owner would have a clai* 

>e*edies a

)hree types of re*edies in tort: !'& !a&

!& !a&

!1& !a&

b

)respass to land: !'&

!&

!1&

!a&

!b&

-.

Tres)ass to Chattels !"# $ &

'

)respass to chattels arises where:

a

2le*ents: !'&

!&

!1&

!4&



$ntent is satisfied when:

EXAMPLE: (ale is leaving a restaurant and takes a blue deni* #evi’s jacket, believing it is his but it is really

+aul’s )his is sufficient to create intent for trespass to chattels 1

Conduct giving rise to trespass to chattels:

4

6ar*:

EXAMPLE: Geeping the jacket for five *inutes is not significant enough Geeping the jacket for a week would

be and +aul would likely be able to recover the rental value of the jacket EXAMPLE: +a* and (e.tra are at +a*’s apart*ent )hey are playing a ga*e where every ti*e

;foreseeability< co*es up, they do a shot of tequila "nce they finish the first bottle, +a* says she will go to the store to get *ore +a*’s dog is in the backyard and +a* tells (e.tra not to let the dog in the house or touch the dog +a* co*es back to find (e.tra holding the dog and sues for trespass to chattels $f the dog is not har*ed, there is no case

a

>e*edies: !'&

!&

H.

Con#ersion !"# $ 6&

'

Conversion arises where:

a

2le*ents: !'&

!&

!1&



$ntent:

EXAMPLE: (ale takes +aul’s jacket and loses it 8ued for conversion $s liable 6ad the purpose to e.ercise

do*inion and control over the jacket and by losing it, there is a serious and substantial interference (ale would have to pay fair *arket value 1

7ona fide purchaser for value EXAMPLE: Cruella steals +rissy’s Ming vase worth E',FFF,FFF Cruella sells the vase to (rake, who pays

fair *arket value +rissy can sue Cruella for conversion $f +rissy cannot find Cruella, (rake is a converter as well and can be sued 2ither has to pay E',FFF,FFF to +rissy or return the vase 4

>e*edies and da*ages a

)ypical re*edy is forced sale:

b

>eplevin:

)>28+%88 )" C6%))2#8

I.

C"AH2>8$"A

$ntentional tort

$ntentional tort

Co**itted by intentionally dispossessing or inter*eddling with a chattel in the possession of another 

Co**itted by intentionally e.ercising do*inion or control over a chattel and seriously interfering with the rights of the owner

(efendant is liable for da*age or di*inished value of chattel

(efendant is liable for the full value of the chattel at the ti*e of the conversion

%efenses and Pri#ile$es to Intentional Torts !"# $ $&

>e*e*ber +"+C%A8 23%M )$+

Privilege 'thers Property Consent Authority "ecessity ,elf9defense

'

Consent

a

$f the plaintiff does consent:

b

+laintiff can *anifest consent e.pressly, by i*plication, or as a *atter of law !'&

E*)ress consent e.ists where:

EXAMPLE: +rofessor is concerned about his weight and needs to stop eating )winkies )ells class

that if they see hi* eating a )winkie, do whatever it takes to stop hi* 8tudent grabs his ar* and pulls the )winkie away, professor sues for battery Would lose, gave e.press consent

c

+rivate necessity:

EXAMPLE: (e*ora is out on the water in a s*all boat loaded down with i*portant cargo when a stor*

arrives (e*ora takes her boat and ties it to +rince’s dock notwithstanding the ;Ao )respassing< signs (e*ora could assert this defense !'&

(efendant will be liable for any har* caused during the e.ercise of the privilege

H&P'THETICAL

(ev is boating on a lake when his *otor boat springs a leak Concerned that he will sink and drown, (ev *otors to the nearest dock, which belong to +aulo (ev ties his boat to +aulo’s dock and walks across +aulo’s land in search of help )he boat da*ages the dock while *oored there $s (ev liable to +aulo for trespass? for the da*age to the dock?



Authority

a

b

Arrest

!'&

0elony:

!&

Misde*eanor:

!1&

+rivate individuals:

,ho)ee)er/s Pri#ile$e

!'&

EXAMPLE: (rug Co has an undercover detective who sees +a.ton shopping on a hot day in a

long heavy coat 6e believes he saw +a.ton put so*ething into the pocket of the coat rabs and detains hi* until the police deter*ine that he did not take anything (epends on length and *anner of detain*ent c

%isci)line

!'&

BAR EXAM APPLICATION

Juestion '

(avid’s neighbor, Kack, is a *usician and practices with his tru*pet every day, late into the night "ne day, (avid saw Kack at the local grocery store 0rustrated by the a*ount of noise co*ing fro* Kack’s house every night, (avid approached Kack fro* behind and yelled, ;$f you don’t stop playing the tru*pet, one day $ a* going to kill you< =nknown to (avid, Kack was wearing the earplugs he wore to perfor* live and did not even know that (avid was speaking to hi* (is*ayed by Kack’s apparent indifference, (avid telephoned Kack and repeated the threat Kack was shocked to discover his neighbor disliked his *usic, and quickly apologi-ed )hat night Kack went to bed early and did not practice his tru*pet $n a cause of action against (avid for assault, Kack will  %& prevail, if the reason he refrained fro* practicing his tru*pet was fear of retribution fro* (avid 7& prevail, because he was upset by the telephone call and (avid should reasonably have known that he would be C& not prevail, because he was unaware of (avid’s state*ents in the store (& not prevail, because (avid said ;one day $ a* going to kill you<

BAR EXAM APPLICATION

Juestion 

#arry, the owner of a s*all bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets )wo days after the *ost recent shoplifting incident, on a particularly war* day, )i* entered #arry’s bookstore wearing a sweatshirt si*ilar to those worn by the shoplifters #arry noticed )i*’s sweatshirt and watched hi* spend over an hour slowly *oving through the various book stacks 2.pecting the worst, #arry *oved a large heavy book cart in front of the front door, and called the police station to report a shoplifter )i* eventually *oved to the cash register to pay f or his selection of books %fter paying for his books, )i* discovered his e.it was blocked by the book cart 8hortly thereafter, the police arrived and asked )i* to e*pty his pockets )i* did not have anything in his sweatshirt pockets )i*’s cause of action for false i*prison*ent will  %& fail, because the shopkeeper’s privilege will prevent the cause of action 7& fail, because )i* was not har*ed by the confine*ent C& succeed, because )i* was aware of the confine*ent (& succeed, because )i* was not in fact a shoplifter

II. NEGLIGENCE

A.

Introduction

'

0ra*e the ele*ents as follows a

(uty:

b

8tandard of Care:

c

7reach of (uty:

d

Cause in 0act:

e

+ro.i*ate Cause:

f

(a*ages:

g

(efenses  =se headings on a negligence questionIseparate out the ele*ents "n an essay, use the facts and engage in analysis

23%M )$+ (.

%uty !"# $$ %&

'

eneral duty rule:

a

(uty is a significant issue where there is: !'&

!&

!1&

!4&



=nforeseeable +laintiffs a

$n the fa*ous +alsgraf case, Kustice Cardo-o articulated the rule that:

EXAMPLE: (rudge is driving negligently, ju*ps the curve and collides into the back of a parked car )he

parked car contained e.plosives, and a huge e.plosion occurred )hree blocks away, +olyanna was walking down the street and was hit by a piece of falling glass fro* the e.plosion 8he sues (rudge for negligence and will lose because she is not a foreseeable plaintiff

the accident, (unCo and 3ena will not be liable )oo freakish, une.pected and bi-arre, and will cut off liability

H&P'THETICAL

(ana negligently operates her auto and strikes +orter, injuring hi* +orter, whose leg is broken fro* the accident, is taken to a nearby hospital While he is being treated for his broken leg, there is an earthquake that causes the roof to collapse % section of the roof strikes +orter on the head, causing a concussion $s (ana liable for +orter’s head injury?

0">2822%7#2

2ffect

)ypical 2.a*ples

-.

Chain of pro.i*ate causation unbrokenL original defendant re*ains liable

Chain of pro.i*ate causation brokenL original defendant’s liability cut off for consequences of antecedent conduct

8ubsequent *edical *alpractice, including aggravation of plaintiff’s condition

Cri*inal acts and intentional torts or torts of third parties, but only where they are unforeseeable under the facts or circu*stances

8ubsequent disease or accident, including all illnesses and injuries resulting fro* plaintiff’s weakened condition, but not deadly, rare diseases

6ighly e.traordinary har* arising fro* defendant’s conduct, as viewed by the court, including grossly negligent conduct of third parties

Aegligent rescue efforts

=nforeseeable acts of od

%ama$es !"# $$ 0&

'

a

=A0">2822%7#2 !$2, 8=+2>82($A&

)here *ust be a cogni-able injury

!'&

!&

EXAMPLE: Het negligently neuters a dog against the plaintiff’s wishes Court will not allow the

plaintiff to recover because this is not a cogni-able injury )he plaintiff was not planning to breed or show the dog, so the plaintiff suffered no injury 

Co*pensatory da*ages a

b

)hree rules: !'&

!&

!1&

c

)wo categories !'&

8pecial da*ages:

EXAMPLE: $f a four9year9old child is injured in a way that will not allow the* to work ever again, we

*ust speculate as to what his lost wages would have been for the rest of his life !a&

!&

Collateral 8ource >ule:

eneral da*ages:

d

1

%voidable Consequences >ule !to be discussed in *ore detail under ;(efenses<&:

+unitive (a*ages a

Aever recoverable just for negligent conduct (efendant has to be *ore culpable than negligent !'&

b

"ften called e.e*plary da*ages !'&

c

Wealth of defendant is highly relevant !'&

!&

BAR EXAM APPLICATION

Juestion 1

0rank received a new snow*obile for Christ*as )he first week of Kanuary, a snow stor* drops a foot of new snow in the *ountains 0rank decides to take his new snow*obile out for a spin 6e is *oving *uch too fast when he co*es over a rise and sees another snow*obile directly in front of hi* 6e swerves to avoid the other snow*obile but loses control 6is snow*obile crashes into the other snow*obile 0ortunately, 6ans, the driver of the other snow*obile, is not injured, but his snow*obile has been rendered inoperable 0rank’s snow*obile still runs, so he goes for help while 6ans stays behind with his da*aged snow*obile While 6ans waits for 0rank to return, a large branch of a nearby tree snaps under the weight of the heavy, new snow )he branch falls and hits 6ans, causing 6ans to break his collar9bone and left ar* $f 6ans sues 0rank for these injuries, 0rank’s best defense would be  %& that he was not negligent 7& that 6ans was negligent in standing near a tree with snow9laden branches C& that the falling tree branch was an intervening and superseding force (& that his negligent conduct was not the actual cause of 6ans’s injuries

1

Mental state: a

b

8cienter is present when:

EXAMPLE: (inah tells +orter that the corn that she is selling hi* is rade % when it is rade 7 +orter

sues for fraud Clearly she intended hi* to rely, but if (inah accidentally looked at the wrong invoice, he would lose his fraud clai* because there is no scienter 8he *ight be negligent (.

"e$li$ent Misre)resentation !"# $3 7&

'

eneral rule:

EXAMPLE: (unCo deals with dangerous che*icals and starts a che*ical fire )o prevent har* to

businesses in the area, they notify plaintiff to evacuate +laintiff loses E'M in business because they had to be shut down +laintiff sues (unCo and loses $f the fire had da*aged plaintiff’s building, then they would be entitled to recover for econo*ic losses that flow fro* that  %

EXCEPTI'":

EXAMPLE: % lawyer prepares a contract for a client and drafts it negligently so that the client loses E'M

and the client sues for *alpractice, the lawyer cannot avoid liability because it is purely an econo*ic loss )here is a fiduciary duty  %ccounting fir* does its job negligently and *isstates the value of the co*pany that hires the accounting fir* $f the hiring co*pany suffers har* as a result, they can recover 

Who beyond a party who is in privity of contract can recover? a

EXAMPLE: $f 3ero. hires (eloitte to do an audit because 3ero. wants to get a E'FM loan to fund a new

product line (eloitte is negligent and overstates the value of 3ero. 0irst Aational 7ank, who lends 3ero. E'FM, wants to sue (eloitte when 3ero. goes bankrupt 7ecause (eloitte knew they were auditing to benefit the banks in town and they could see the reliance, a duty is owed

b

C.

$n the conte.t of lawyer/client relationships:

Interference 6ith Contractual 4elations !"# $3 C&

'

)wo ele*ents: a

b

EXAMPLE: (inCo approaches 3avier Co and says that they want a kind of widget )hey knew that

3avier has a contract with +ortie Co to sell all of their widgets (inCo says they will pay 3avier 1 ti*es the a*ount +ortie is paying and 3avier agrees +ortie will win if they sue (inCo %.

Interference 6ith Pros)ecti#e Economic Ad#anta$e !"# $3 (&

'

)his tort protects the probable ;e.pectancy< interests of future contractual relations of a party



+laintiff can prevail only by showing that the defendant: a

b

H&P'THETICAL

(eena really wants to get a job as an associate at a large Washington law fir* 0ro* a friend of hers at the fir*, (eena learns that her *ain co*petitor for the job is +aul Concerned that +aul will beat her out for the job, (eena starts a ru*or that +aul is unreliable and lied about being ad*itted to the bar +aul does not get the job Will he have a cause of action against (eena for interference with prospective advantage?

E.

In3urious +alsehood 1Trade %is)ara$ement2 !"# $3 2&

'

+laintiff *ust prove: a

b

c

d

EXAMPLE: "wner of Music Co*pany, "wen, is approached by Connie who asks if they have the 7arry

Manilow/#ady aga duets "wen says no and Connie asks if +arker >ecords does "wen knows that they do, but does not want to give the* business and says no $f +arker finds out, they could recover for injurious falsehood X. MISCELLANEOUS TORT CONCEPTS

A.

Vicarious Liability !"# 3 %&

'

Em)loyer8Em)loyee 1Respondeat Superior 2

a

EXAMPLE: Hinny is driving a van for (o*ino’s (rives negligently and collides with +alethia Hinny is

negligent in scope of e*ploy*ent and +alethia can sue (o*ino’s 7y virtue of being an e*ployer, they are vicariously liable b

2*ployers can seek inde*nity fro* e*ployee but rarely do so

c

2*ployers can be directly liable if they are negligent in hiring EXAMPLE: $f (o*ino’s hired Hinny when they knew that he was a bad driver or failed to do adequate

background checks, they will be directly liable d

$ntentional torts co**itted by an e*ployee:

!'&

EXCEPTI'":

EXAMPLE: 7ouncer at a bar co**its a battery when ejecting an unruly patron 7ar owner could be

vicariously liable even though it was an intentional tort 

Inde)endent Contractor 

a

b

1

Whether a person is an independent contractor rather than an e*ployee depends on:

Parent8Child

a

(.

Abatement8,ur#i#al of Action and !ron$ful %eath !"# 3 C&

'

Co**on law: a



8urvival 8tatutes: a

1

Wrongful (eath 8tatutes: a

4

#oss of Consortiu*: a

EXAMPLE: (eirdre is driving negligently and she hits and severely injures +oinde.ter 6e is in great

pain, is in the hospital for si. *onths and then dies fro* the injuries 6e has a wife and *inor child "nce +oinde.ter has died, the estate can continue his clai* through a survival statute 6is wife can bring an action for loss of consortiu* for the si. *onths he was in the hospital "nce he dies, his wife and child can both bring a clai* for wrongful death, suing for own injuries suffered

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