Legal Three

Torts Outline for the California Bar Exam

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by

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  1. Intentional Torts

    1. Intent: (1) purpose to bring about a certain result OR (2) acting w/ substantial certainty that a certain result will occur.

      1. Transferred intent: applies where D intends to commit a tort against one person but instead: (1) commits diff tort against that person, (2) commits same tort as intended but against diff person, or (iii) commits diff tort against a diff person

        1. Limitations: this doctrine may be used where both the tort intended and the tort that results are: assault, battery, false imprisonment, trespass to land, or trespass to chattels;

    2. Causation – result must have been legally caused by D’s act or something set in motion by D.

    3. Prima Facie Cases:

      1. Battery – harmful or offensive (not consented to) contact w/ plaintiff’s person with intent and causation. (includes anything connected to P)

        1. Contact may be indirect (i.e. placing a trap for P)

        2. Offensive – would not be permitted by a person of ordinary sensitivity

      2. Assault – Act by D creating reasonable apprehension (knowledge) in plaintiff of immediate harmful or offensive contact to P’s person, with intent and causation.

        1. Unloaded gun problem

        2. Mere words insufficient (need words + overt conduct)

          1. Words can neutralize implications or negate immediacy;

      3. False Imprisonment– Act or omission (if duty) that confines or restrains plaintiffto a bounded area with intent and causation.

        1. Phy barrier or threats and invalid use of legal authority are sufficient

        2. P must know of confinement or suffer harm

        3. Reasonable means of escape that P can reasonably discover (it exists, area not bounded);

        4. Exceptions: shopkeeper’s privilege/privilege of arrest

      4. IIED – Extreme and outrageous conduct causing severe emotional distress, made intentionally or recklessly.

        1. Outrageous – exceeds all bound of decency tolerated in a civilized society

        2. Mere insults: insufficient UNLESS plus factor:

          1. Public

          2. Repetitive

          3. Fragile class (i.e. children, elderly)

          4. Hypersensitive (and D knows of this).

        3. Bystander IIED:

          1. P was present;

          2. P is close relative of injured party;

          3. D knew P was present and a close relative;

      5. Trespass to Land– Physical invasion of real property with intent to enter particular piece of land, and causation.

        1. Physical thing must enter land

        2. Land = soil below and airspace above to a reasonable distance;

      6. Trespass to chattels/conversion– Interference with P’s interest/right of possession in a chattel and there are damages. If great (conversion – pay full value).

        1. Conversion = substantial interference; P gets full value (FMV at time of possession) or possession (replevin)

        2. Trespass – P gets actual damages or rental value for loss of use

        3. Mistaken belief re ownership not a defense

  1. Defenses to Intentional Torts

    1. Consent – express (unless duress or fraud), implied by law or conduct (obj circumstances);

      1. Was the privilege available on these facts?

        1. Did P have capacity?

        2. Was consent expressly given?

        3. Implied by custom and usage OR P’s conduct?

          1. Apparent consent – that which a RP would infer from custom and usage or P’s conduct (i.e. body contact sports)

          2. Consent implied by law – where action is necessary to save a person’s life or some other impt interest in person/property;

      2. If yes, did D stay within its boundaries? If no, D may be liable;

    2. Defense privileges – correct timing and reasonable belief issues

      1. Self-Defense – Reasonable belief that tort is being or about to be committed on defendant.

        1. Reasonable mistake re existence of danger allowed

        2. Force must be proportional

        3. Duty to retreat b/4 using deadly force if can be done safely, unless own home

        4. Not available to initial aggressor

      2. Defense of others – Tort is in fact being committed or about to be committed on a third party.

        1. Actor must reasonably believe that 3p could have used force to defend himself

        2. Reasonable mistake allowed as to whether other person is being attacked of has right to defend himself

      3. Force allowed – Force reasonably necessary to defend, deadly force if threat of death or serious bodily harm.

      4. Defense of property – Reasonable belief that tort is being committed or about to be committed on property. Reasonable force allowed. No deadly force.

        1. Request to desist/leave req’d unless dangerous/futile

        2. Not available against one w/ privilege

        3. Defense does not apply once tort already committed, unless hot pursuit

        4. Mistake allowed as to whether intrusion has occurred or whether request to desist is req’d; Mistake NOT allowed as to whether entrant has a privilege that supercedes defense of prop right;

    3. Reentry to Land, Recapture of Chattels

      1. Timely demand to return chattel req’d unless futile

      2. Recovery from wrongdoer only

      3. Entry on Land –

        1. Wrongdoer’s land: entry privileged at reasonable times and manner after first making demand for return;

        2. Innocent party: may enter and reclaim at reasonable time & peaceful manner when LO given notice of presence and refuses to return; chattel owner liable for any actual damage caused by entry;

        3. Owner’s own fault: no privilege to enter (resort to legal process); i.e. negligently allowing cows to wander;

    4. Privilege of arrest

      1. Felony arrest by police – Reasonable belief that felony has been committed, and reasonable belief that person arrested committed it.

      2. Felony arrest by private citizen – Reasonable belief that person arrested actually committed felony, and felony actually committed.

        1. No mistake allowed re whether felony occurred;

      3. Force allowed for felony arrest- Force reasonably necessary to make arrest, deadly force if suspect poses threat of serious harm.

      4. Misdemeanor arrest – Breach of the peace and committed in the presence of the arresting party. No deadly force.

    5. Shopkeeper privilege – detain suspected shoplifter if reasonable grounds, detention done in reasonable manner/time, liable for actual damages

    6. Necessity (property torts only) – Interference with real or personal property to avoid a greater harm. As long as emergency continues, P cannot expel D from land;

      1. Public (to protect community/large grp) – absolute defense/no legal liability;

      2. Private –limited defense/ Actual damages or harm only (no nominal/punitive); actor must pay for any injury he causes

  1. Defamation

    1. Prima Facie Case

      1. Defamatory statementof or concerningP

        1. Defamatory = tends to adversely affect reputation

        2. Of or concerning – reasonable person would understand it referred to Pl

        3. P must be a living person;

          1. Corp/partnership/unincorporated association may be defamed (i.e. remarks re fin condition, honesty).

        4. If statement does not refer to P on its face, extrinsic evidence may be offered to establish that the statement referred to the P.

        5. Group defamation

          1. Small group – if defame refers to all members of small grp, each member may establish that statement is about him by alleging he is member of that grp;

            1. If statement refers to some members of small grp, P can recover if RP would view the statement as referring to him;

          2. Large grp – no member can prove statement is about him;

      2. Publication to a third party, and

        1. Primary publishers (i.e. newspapers and TV stations) – liable to same extent as author/speaker

        2. Secondary publishers (i.e. one selling papers or playing tapes) – liable only if knows/should have known of defame content

      3. Damages to P’s reputation.

        1. General damages presumed if slander per se (unchastity, business/profession, crime of moral turpitude, loathsome disease) or libel.

        2. Otherwise must show actual damages (economic harm)

    2. Constitutional Issues (if defamation concerns a matter of public concern); P must prove:

      1. Falsity of the statement (where statement of public interest is true, no COA for defamation exists)

      2. Fault on the part of D.

        1. Public figure/official – actual malice (knowledge that statement was false or reckless disregard as to whether it was false). If actual malice shown, damages presumed and D liable for defamation;

        2. Private figure/public concern – Actual malice – presumed damages/punitive damages; If neg and actual injury is shown, D liable for defamation;

        3. Private person/private concern – no fault as to truth or falsity need to be proved; presumed damages (and punitive where appropriate);

    3. Defenses

      1. Consent (complete defense); see above

      2. Truth – where P need not prove falsity, truth = complete defense;

      3. Absolute Privilege (id of D) – can never be lost

        1. Comm b/n spouses

        2. Govt official in course of conduct (all 3 branches)

        3. Remarks made during judicial proceedings, by legislators in debate, by fed executive officials, and in compelled broadcasts;

      4. Qualified privilege (circumstance of speech) – can be lost thru abuse

        1. 3 situations: in connection w/ socially useful context, defame statement relevant to socially useful purpose, statement made in good faith.

          1. I.e. letters of rec, evaluations by former creditors, statements to police

        2. Qualified privilege for: reports of official proceedings; statements in interest of publisher or recipient, or both;

  1. Misc. Intentional Torts

    1. Invasion of privacy torts – consider IIED. (4 privacy torts – Ads Introduce False People); Note: for privacy torts, emotional distress and mental anguish are sufficient damages;

      1. Appropriation – unauthorized use of P’s name or likeness for D’s commercial advantage (name used for trademark, advertising, on packaging)

        1. Newsworthiness exception

      2. Intrusion on Seclusion – Invasion by D of P’s seclusion in a way objectionable to avg person.

        1. Place where P has reasonable expectation of privacy (photos taken in public place not actionable)

        2. Physical entry not req’d

        3. Act of prying or intruding must be objectionable to RP

      3. False Light – Widespread disseminationof a major misrepresentation concerning P’s activities/beliefs that would be objectionable to reasonable person. (recovery for emotional harm)

        1. Publicity required for liability to attach

        2. Intent not req’d (liable even if good faith)

        3. If matter of public interest, malice must be proved

      4. Public Disclosureof Private Facts– Widespread dissemination of private info objectionable to avg person. (not public records); may be liable even if true;

        1. Academic records, financial info, medical records

        2. Newsworthiness exception (of public interest)

        3. Dual life fact pattern (info must be confidential)

      5. Defenses – Consent, Defamation privileges, Truth defense for false light, newsworthy exception for disclosure.

    2. Wrongful Institution of Legal Proceedings

      1. Malicious Prosecution –

        1. Institution of criminal proceedings

        2. Termination in favor of P

        3. Absence of probable cause for prior proceedings (insufficient facts for RP to believe P guilty)

        4. Improper purpose, and

        5. Damages

      2. Abuse of process –

        1. Wrongful use of legal process for ulterior purpose +

        2. Threat or act against P to accomplish ulterior purpose.

    3. Fraud Torts.

      1. Intentional misrep (fraud/deceit) –

        1. Misrep of a material fact,

        2. scienter (D knew/believed it was false or no basis),

        3. Made with intent to induce reliance,

        4. Which does induce reliance (causation),

        5. Justifiable reliance (only as to statement of fact)

        6. Damages (actual pecuniary loss)

      2. Negligent Misrep – misrep by D in a business/professional capacity, breach of duty, causation, justifiable reliance, and damages

        1. Generally confined to misreps made in commercial setting

    4. Business Torts.

      1. Interference with business relations – (1) Interference with known, valid contractual relationship or business expectancy, (2) D knows of relationship/expectancy, (3) intentional interference by D inducing breach/termination, and (4) damages.

        1. Obtain business or protect interest → D’s conduct may be privileged;

        2. Prospective business may be privileged.

  1. Negligence – breach of duty of care that is actual and proximate cause of P’s injuries

    1. Prima Facie Case:

      1. Duty.

        1. Foreseeable P’s

          1. Cardozo (maj)– w/in foreseeable zone of danger,

          2. Andrews (min) – everyone is foreseeable, duty owed to all

          3. Rescuer (always foreseeable), 3p beneficiary, prenatal injury

        2. Standard of Care – Owe amount of care that would be exercised by RPP acting under the same or similar circumstances (obj standard);

          1. Children – Child of like age, education, intelligence, & experience, unless engaged in adult activities (subjective std)

          2. Superior knowledge – std of another w/ same knowledge

          3. Physical characteristics – built into RPP if relevant

          4. Professional – Knowledge and skill of member of profession in good standing in same or similar community. Must offer expert testimony; custom of profession sets std of care.

          5. Owners and occupiers of land.

            1. Undiscovered trespassers: no duty

            2. Discovered/Anticipated trespassers:

              1. Activities– duty of reasonable prudence under circumstances;

              2. Conditions– known man made death traps (artificial, highly dangerous, concealed/hidden, D knew about it)

            3. Licensees: one who enters land w/ permission for her own purpose or business (social guest); includes police/fire fighter;

              1. Activities– Duty of reasonable prudence under the circumstances;

              2. Conditions– All known traps (concealed from licensee and known in advance by LO).

              3. No duty to inspect

            4. Invitees: enter land in response to invitation by landowner;

              1. Activities– duty of reasonable prudence under circumstances;

              2. Conditions– All knowable traps (concealed and LO knew or could have discovered thru reasonable inspection).

              3. Duty to inspect.

              4. Invitee status may be lost (if scope of invitation exceeded) – i.e. goes into closed off area of business he is not allowed too

          6. Attractive nuisance/Children trespassers

            1. Dangerous condition on land that owner knows/should know.

            2. D knows/should know children frequent area.

            3. Condition likely to cause injury (b/c child unable to appreciate risk).

            4. Cost of remedying is slight compared to risk

          7. Innkeepers and common carriers – Heightened duty. Liable for slight negligence.

        3. Statutory Duty (crim or regulatory statute) – Class of persons, class of risk.

          1. A statute’s specific duty may replace CL duty of care if:

            1. Statute provides for crim penalty

            2. Statute clearly defines the std of conduct

            3. P is w/in the protected class; and

            4. Statute designed to prevent type of harm suffered by P.

          2. Exceptions: compliance more dangerous than violation or statutory compliance impossible under circumstances

          3. Maj: unexcused stat violation = neg per se (duty and breach)

        4. NIED –

          1. Duty to avoid causing emotional distress breached when D creates a foreseeable risk of physical injury to P, either by:

            1. Causing a threat of physical impact that leads to emotional distress, or

            2. Directly causing severe emotional distress that by itself is likely to result in physical symptoms;

          2. Injury requirement – P can only recover when D’s conduct caused some physical injury

            1. Exception: physical manifestation not req’d w/ mishandling corpse, reporting death of close relative;

          3. Bystander recovery –

            1. P bystander must be w/in zone of danger created by D’s neg conduct;

            2. Modern trend: recovery allowed if P and injured are close relatives, P was present; P observed or perceived the injury.

        5. Affirmative Duty to Act – No legal duty to act, unless:

          1. Caused peril;

          2. Special relationship (i.e. common carriers/inn keepers);

          3. If undertake rescue, must use reasonable care;

      2. Breach – fact + reason

        1. Breach of duty: where D’s conduct falls short of that level req’d by applicable std of care owed to P→ breach;

        2. P may use the following to prove breach:

          1. Custom or usage (can establish std of care but not neg).

          2. Violation of statute (P must still prove causation and damages)

          3. Res Ipsa Loquitor – Accident does not normally occur absent negligence and accident usually happens b/c of s/o in D’s position. (old std: D had exclusive control over instrumentality).

            1. P must establish freedom from fault.

            2. BOP shifts to D

            3. Effect of RIL: P has made a prima facie case and no directed verdict may be given for D. Case goes to jury.

      3. Causation (P must show D’s conduct was cause of his injury)

        1. Actual Cause–

          1. But for test

          2. Substantial factor test (multiple D’s and mingled causation); joint and several liability

            1. Where several causes bring about injury and any one alone would have been sufficient, D’s conduct is the cause in fact if it was a substantial factor in causing the injury (2 merging fires)

          3. Summers v. Tice (multiple D’s and unascertainable cause); use when only 1 D caused harm;

            1. Shift BOP to D’s to prove innocence by prepond of evidence; otherwise, joint & several liability

        2. Proximate Cause/Legal cause – D liable for foreseeable risks; D is liable for all harmful results that are the normal incidents of and w/in increased risk caused by his acts.

          1. Direct cause: if uninterrupted chain of events, D liable for ALL foreseeable harmful results.

          2. Indirect cause: intervening force adds to P’s injury

            1. D liable for foreseeable results caused by foreseeable intervening forces.

              1. D liable→ medical neg., neg rescue, protection/reaction forces, disease or accident (these are always foreseeable), or misconduct matches injury (see if harm is what you’re afraid of).

              2. D not liable if intervening force = crime or intentional tort of 3P, acts of GOD

          3. Superseding forces: intervening forces that produce unforeseeable results – Superseding forces break causal connection b/n D’s neg act and P’s injury

      4. Damages

        1. Eggshell plaintiff– liable for all damages

        2. Personal injury (P compensated for all damages, special and general), property, punitive (willful, wanton, malicious conduct)

        3. Duty to mitigate damages.

        4. Collateral Source Rule – damages not reduced b/c P received benefits from other sources.

      5. Attorney Malpractice Negligence – Negligence within Negligence Case – must prove both cases, i.e. if P sues lawyer for malpractice and wants to recover damages for case P would have recovered in, but for lawyer’s negligence, must demonstrate he would have won and recovered damages in underlying action

        1. Note: when analyzing atty malpractice bring up breach of k damages

    2. Defenses

      1. Contributorynegligence – Partial fault or fails to exercise care.

        1. CL– barred P’s right to recovery

        2. Last clear chance– person w/ last clear chance to avoid and fails to do so is liable (P’s rebuttal to defense of contrib. neg);

      2. AssumptionofRisk – P knew of risk & P voluntarily proceeded in face of risk

        1. P’s claim completely barred;

        2. Rescuing does not equal assuming risk

      3. Comparativenegligence –

        1. Plaintiff fault: std is RPP

        2. P’s contrib. negligence is not a complete bar to recovery

          1. P’s recovery reduced by jury’s numerical assignment of fault.

        3. Pure Comparative neg: P’s award reduced by % of fault attributable to her. (apply this on MBE)

        4. Modified/Partial comparative neg (maj): if P more than 50% at fault→ absolute bar to recovery;

          1. P can recover only if P’s neg was less serious or no more serious then that of D.

  1. Strict Liability

    1. PrimaFacieCase:

      1. Absolute duty to make safe, breach, causation (actual and proximate), damages.

        1. Remember: no amount of due care will relive D of liability in SL cases

    2. Types

      1. Injuries caused by animals (or dogs that already bite)

        1. Trespassing animals – owner strictly liable for reasonably foreseeable damage done by trespass of his animals;

        2. Domesticated animals – no SL unless knowledge of vicious propensities

        3. Trespassing Cattle

        4. Wild animals – owner strictly liable as long as injured person did nothing to bring about injury.

        5. Trespassers – owner not SL unless neg.

      2. Ultrahazardous Activities (attempts to prevent are irrelevant); 3 requirements→

        1. Activity involves risk of serious harm,

        2. Cannot be made entirely safe,

        3. Not common in area where conducted (i.e. blasting, manufacturing explosives, radiation, nuclear energy)

      3. Nuisance (inconsistent land use)

        1. GR: D is liable if his activities interfere w/ P’s ability to use and enjoy his land to an unreasonable degree (subj. std.)

        2. Can be intentional or SL

      4. Consumer Products (see below)

        1. Strict duty owed by commercial supplier/merchant

        2. Breach

        3. Causation

        4. Damages

  1. Products Liability

    1. Theoriesofliability:

      1. Intentional torts

      2. Negligence

      3. Implied warranties

      4. Express warranties

      5. Strict product liability

    2. Common Elements: liability under any products liability theory requires proof of:

      1. A defect, and

        1. Manufacturing defect: when product emerges from manufacturing diff and more dangerous that products made properly (the one product is bad)

          1. Proof: the product failed to perform as safely as an ordinary consumer would expect.

        2. Design defect: when all products of a line are the same, but have dangerous propensities.

          1. Proof: safer design, cost effective, practical (D could have made the product safer w/o serious impact on product’s price or utility);

        3. Inadequate warning: failure to give adequate warning as to risks involved and danger not apparent to users.

          1. Proof: warning was not effective, prominent and understandable.

        4. Govt Safety Stds: product’s noncompliance w/ govt safety stds establishes that it’s defective, compliance is evidence, but not conclusive that product not defective.

      2. Defect existed when it left D’s control;

        1. This is inferred if product moved thru normal channels of distribution.

    3. Liability Based on Intent: D liable if D intended consequences or knew they were substantially certain to occur.

      1. Any injured P can sue;

      2. Punitive damages available

      3. Intentional tort defenses are available;

    4. Liability Based on Negligence

      1. Prima facie case is same as any neg case (duty, breach, causation, damages)

      2. Duty of care owed to any foreseeable P;

        1. Who can sue? Users, consumers, and bystanders.

        2. Commercial suppliers such as manufacturers, wholesalers and retailers can be held liable;

      3. Breach

        1. Proven by: (1) neg conduct of D leading to (2) the supplying of a defective product

          1. i.e. failure to inspect or implement quality safety controls

          2. Easier to prove for manufacturer, harder to prove for retailers b/c they can satisfy duty through a cursory inspection

      4. Causation

        1. An intermediary’s (i.e. wholesaler’s) neg failure to discover defect does not supersede the original manufacturer’s negligence unless intermediary’s exceeds ordinary foreseeable negligence

      5. Damages

        1. Physical injury or property damage must be shown

    5. Liability Based on StrictLiability: any foreseeable P may sue. Prima Facie Case→ (1) strict duty owed by a commercial supplier of a product, (2) breach, (3) causation, (4) damage

      1. Defendantmust be merchant who deals in these kinds of goods. (DUTY)

        1. Casual seller/service provider→ not a merchant

        2. Every party in distribution chain is a merchant

      2. Product must be defective (BREACH)

        1. Manufacturing, design, informational

        2. No liability if danger apparent and no way to make safe

      3. Thedefectexisted when the product left D’s control. (ACTUAL CAUSE)

        1. Presumption – if product traveled in normal channel of distribution, inference that defect existed when left D

      4. Plaintiff must be making a foreseeable use of the product. (not intended use); (PROXIMATE CAUSE)

      5. Defenses for SL: comparative neg, assumption of risk

      6. Disclaimers: irrelevant in negligence or SL cases if personal injury or prop damage occurs.

    6. Liability Based on Implied Warranties – 2 warranties implied in every sale of goods that can serve as basis for suit by a buyer

      1. Implied Warranties

        1. Merchantability – whether goods are generally fit for ordinary purpose for which goods are used;

        2. Fitness for a particular purpose – Seller has reason to know particular purpose and that buyer is relying on seller’s skill and judgment in selecting the goods;

      2. Breach – occurs when product fails to live up to above stds;

      3. Causation – same as neg cases

      4. Damages – can recover for personal injury, prop damage, AND purely economic loss;

      5. Defenses – assumption of risk and contributory neg

      6. Who can sue? Only purchaser, her family, household, and guests.

    7. Liability Based on Representation Theories: D may be liable if product does not live up to some affirmative representation

      1. Express Warranty: any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain;

        1. Any consumer, user or bystander can sue

        2. Breach – P must show that product did not live up to its warranty

        3. Causation, damages, and defenses (same as above)

      2. Misrepresentation of fact

        1. A seller will be liable for misrep of facts concerning a product where:

          1. Statement was of material fact concerning quality or uses of goods (mere puffery insufficient), and

          2. The seller intended to induce reliance by the buyer in a particular transaction;

        2. Justifiable reliance req’d (i.e. rep was a substantial factor in inducing the purchase)

        3. Causation and Damages

          1. Actual cause shown by reliance;

          2. Proximate cause and damages are same as for SL

        4. Defenses – Assumption of risk not a defense if P entitled to rely on the rep.

  1. Nuisance

    1. Private Nuisance – substantial, unreasonable interference w/ another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

      1. Substantial interference – interference that is offensive, inconvenient, or annoying to the average person in the community.

        1. Not substantial – result of P’s hypersensitivity or specialized use of his property.

      2. Unreasonable interference – for nuisance based on intent or neg, severity of inflicted injury must outweigh utility of D’s conduct (balancing);

    2. Public Nuisance – an act that unreasonably interferes with the health, safety, or property rights of the community.

      1. Private party – recovery by private party available only if private party suffered unique damage not suffered by public

    3. Remedies

      1. Damages

      2. Injunctive relief – if damages unavailable/inadequate; ct will consider relative hardships, but no balancing where D’s conduct was willful or against an assertion of right by P.

      3. Abatement by self help –

        1. Private nuisance – self help abatement available after notice to D and his refusal to act. Only necessary force allowed.

        2. Public nuisance – only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.________________________

  2. General Considerations

    1. Vicariousliability – liability derivatively imposed.

      1. Employer – Employee (respondeat superior): Employer will be vicariously liable for tortious acts committed by her employee if the acts occur within the scope of the employment

        1. Frolic/Detour:

          1. Minor departures w/in scope of employment

          2. Major departures NOT w/in scope (i.e. if deviation in time or geographic area is substantial)

        2. Intentional torts: outside scope of employment unless:

          1. Force is authorized in employment (i.e. bouncer),

          2. Friction generated by employment (i.e. Bill collector)

          3. Servant furthering business of master (i.e. Removing customers from premises b/c they are rowdy)

      2. Independent Contractors: No vicarious liability.

        1. Exception: duty is non-delegable (i.e. IC injures invitee), or inherently dangerous activity (blasting)

        2. Negligent selection: in respondeat superior and IC cases, employer may be liable for own negligence in selecting the EE or IC

      3. Auto Owners and Drivers: No liability

        1. Unless on task for owner.

        2. Negligent entrustment – owner may be liable for own negligence in entrusting car to driver.

      4. Parent and Child: None (but parent may be liable for own neg); most states, by statute, make parents liable for intentional torts of their minor children up to a certain dollar amount.

      5. Partners and joint venturers: each member VL for conduct of other members committed in scope and course of partnership

      6. Tavernkeepers:

        1. CL: no liability on vendors of liquor

        2. ML: Dramshop Acts adopted which create COA in favor of any 3p injured by intoxicated vendee.

      7. If no vicarious liability, may still be liable for own neg, neg hiring, neg entrustment, neg supervision, etc.

    2. MultipleDefendantIssues

      1. Joint and several liability –

        1. When 2 or more neg acts combine to proximately cause an indivisible injury, each neg actor will be jointly and severally liable (i.e. liable to P for entire damage incurred);

        2. If injury is divisible, each D is liable only for the identifiable portion.

        3. Where 2 or more D’s act in concert and injure P, each is jointly and severally liable for entire injury, even if injury divisible.

      2. Contribution and Indemnity

        1. Contribution (not available for intentional torts) – allows D who pays more than his share of damages to have a claim against other jointly liable parties for the excess.

          1. Methods

            1. Comparative contribution (maj): contribution imposed in proportion to relative fault of Ds (out of pocket D may recover from other Ds the % of fault attribute by jury)

            2. Equal shares (min): apportionment is in equal shares regardless of degrees of fault.

        2. Indemnity – involves shifting the entire loss b/n or among tortfeasors. Indemnity available:

          1. By contract

          2. Party held VL is entitled to full indemnity from active tortfeasor

          3. A non-manufacturer merchant who has been held SL for defective product can get full indem from manufacturer

          4. Where there has been an identifiable diff in degree of fault (i.e. one who is passively neg may recover indemnification from joint tortfeasor who is actively negligent)

    3. TortImmunities

      1. Government immune while engaging in traditional government functions involving discretionary actions.

        1. Look to sovereign immunity.

    4. Survival Acts – at CL, tort action ended at death of victim, but now majority of states allow spouse to bring cause of action from the time of injury to time of death

    5. Loss of consortium/wrongful death: COA for uninjured spouse

      1. Loss of services – no one to perform household tasks

      2. Loss of companionship

      3. Loss of sex

    6. Parent-child –Parent may sue for loss of child’s services but not vice versa.

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