Torts II Outline

 
 
TORTS II OUTLINE – Moore – Spring 2004
 
I.                   VL – there is L b/c there is a r’ship b/w 2 parties and b/c of act by 2d party, (s) is L – not based on fault – wrong imputed based on that r’ship.
a.       CL – required direct command by master à implied commands (ask if EE’s actions are in furtherance of ERs benefits/business)
b.      Lundberg: an EE’s negligence will be imputed to ER, if EE was acting w/in scope of employment at the time the negligent conduct occurred.
                                                              i.      KEY: scope of employment
1.      Driving to and from work is not in SOE
2.      EXCEPTION: EE using his own car acting n SOE (in furtherance of ER’s business) is driving from his last appt.
3.      MAJ – rt of control/SOE
4.      MIN/Cardozo – if ER creates necessity for travel, he is in SOE, even though he is serving a personal purpose at the same time
a.       Ask if conduct is in furtherance of duties owed to ER and if ER could be exercising control over EE. 
c.       Fruit v. Schreiner: A salesman attending a convention paid for by his ER may be acting w/in SOE while driving back to hotel from a bar in the city where the convention is being held. 
d.      PP
                                                              i.      deep pockets of ER – basis for recovery
                                                            ii.      spread costs (to buyers)
                                                          iii.      ER can buy insurance
                                                          iv.      ERs cannot control EEs as directly as they could in past (hiring, etc.)
                                                            v.      ERs assume the risk of using a 3d party to do your work
                                                          vi.      Enterprise theory – view of EE and ER as one unit
1.      Look at venture they enter into – so ER benefited or would have benefited from EEs acts b/4 accident
2.      If ER negligently hired EE, that would be negligence, not VL.
                                                        vii.      The law protects he is least able to protect himself
e.       Detour & frolic – if ER is doing own errands, on company time, no VL.
f.       ITs – an ER may be held L for ITs of EE, when EE’s ITs are rzbly related to EE’s employment & are therefore w/in SOE. 
                                                              i.      When EE’s ITs are with purely personal motives, he ahs departed from SOE and ER is not L.
g.      Murrell v. Goertz: ICs – no VL for IC (one who engaged in service for (s) else, but is free from control and direction of ER. 
                                                              i.      EXCEPTIONS:
1.      In the case of a non-delegable duty, person upon whom the duty is imposed is L for IC’s actions in negligently performing that duty (Maloney v. Ruth)
h.      Popejoy v. Steinle: JE­ – VL if parties acting in JE.
                                                              i.      4 parts to JE:
1.      agreement, exp/imp, among members of a group
2.      to act for a common purpose to be carried out by the group
3.      a community of pecuniary interest in that purpose
4.       an equal right of control
i.        Shuck v. Means: BAILMENTS – under many state statutes, the owner of an automobile, who is BR, is VL for the conduct of the BE when driving the automobile with the BR’s permission.
                                                              i.      Consent can spread to (s) not given express consent (subpermittee)
                                                            ii.      Family purpose doctrine – if child using car for family purpose, then VL to parents
1.      Omnibus Clause – clause in insurance policy extending coverage to any member of family or w/BR’s permission
                                                          iii.      Negligent Entrustment – if (s) entrusts car to (s) w/ known bad driving history, L can be imputed
                                                          iv.      CL – BR not L for acts of BE à statutes spread L (PP: to give remedy for a wrong)
j.        Smalich v. Westfall: CONTRIBUTORY NEGLIGENCE – П is barred from recovery if П, through VL, could be held liable as a Δ in master/servant and JE r’ships
                                                              i.      A driver’s negligence will not be imputed to a passenger, unless the r’ship b/w them is such that the passenger would be VL as a Δ for driver’s negligence.
                                                            ii.      Owner-passenger/driver r’ship is not enough for VL
II.                SL – Δ must pay damages although Δ was acted neither intentionally nor negligently
a.       ICs – non delegable duties??? (See notes on 1.26)
b.      Animals: L upon those who keep, possess, or harbor the animal, not just the owner.
                                                              i.      TRESPASSING ANIMAL RULE: CL & East US: O L when animal trespasses (cattle, horses, sheep, hogs, goats, errant fowl; NOT dogs, cats – no value, hard to confine)
1.      EXCEPTION: straying from a highway on which they were lawfully being driven (necessity of getting animals to market) – only first property
2.      West US – rejected CL rule
a.       Fencing out statutes – if П fenced his land properly, there was SL when the animals broke thru the fence
b.      Fencing in statutes – O must fence in animals or otherwise restrain them, if not O is SL
                                                            ii.      FN RULE: CL & MAJ: O or Possessor of a FN was subject to SL if animals injured anyone
1.      Customs of community determine FN
                                                          iii.      DOMESTICATED ANIMALS RULE: CL: owner of DA (cat, dog, sheep or horse) was SL only if O knew or had reason to know that animals had VP
a.       VP abnormal to its class
c.       ADAs: no fault in activities, but b/c so dangerous, SL applies
                                                              i.      Rylands v. Fletcher: one may be held liable for damages caused by non-natural use of the land, even if here is no negligence on the part of the land-owner which causes the damage
1.      If you bring non-natural thing onto your land, and keep it their, you are responsible for it escaping
2.      EXCEPTIONS:
a.       vis major (e.g. Golden v. Amory below)
b.      Пs fault (contributory negligence)
                                                            ii.      Bridges v. Kentucky Stone: 2 rules
1.      When one stores dynamite, in a storage site, far from where the activity occurs, it is not necessarily deemed to be ADA.
2.      П must prove that the Δ’s engaging in ADA is the pxcx of the damage or loss
                                                          iii.      American Harbor Belt RR v. American Cyanamid: it’s not the substance that is ADA, but it becomes dangerous when it is handled or used in some way after it leaves the mfr’s premises; no SL even if the danger is foreseeable. 
1.      could be a negligence c/a – but not preventable by any standard of care
                                                          iv.      Foster v. Preston Mill: under SL, one may recover for only the type of harm that makes the activity UH or AD and therefore subject to SL
1.      PP: right to use & enjoy land VS. limiting responsibility for extraordinary & unusual consequences
d.      DEFENSES TO SL:
                                                              i.      Golden v. Amory: one will not be able to recover in SL if the harm is caused by an unforeseeable event; vis major à no SL
                                                            ii.      Sandy v. Bushy: Contributory negligence is NOT a defense, but ASS/RISK is(if prove 1. S had knowledge of risk and 2. S voluntarily placed himself in way of harm)
1.      PP: court doesn’t want to help person who knows their animal is vicious – issue of fairness – not letting wrong-doer go unpunished
III.             PL – L of a mfr, seller, or other supplier of chattels, to one w/ whom he is not in privity of K, who suffers physical harm caused by the chattel: through mfr’s negligence of warranty
a.       5 THEORIES TO RECOVERY – more thorough covering below
                                                              i.      Negligence: same as b/4 except for causation prong
1.      NEED: 
a.       conduct on part of mfr
b.      injury or harm to Пs person or property
å      accident itself
å      product changes
å      R.I.L.
c.       causation b/w behavior and injury
å      limited by 4Cability
2.      Learned Hand Theory: B
risk)
                                                          iv.      FROM HER REVIEW (4/22)
1.      §402 A: mfr defect—if it departs from its intended design—SL at its truest sense
2.      this is inadvertent defects
3.      don’t have to show carelessness—is true SL don’t have to prove any of that
4.      allows you to sue the mfr w/o any negligence considerations
f.       PRODUCT DEFECTIVENESS (R.3d)
                                                              i.      L of commercial seller or distributor for harm caused by defective products
1.      one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to L for harm to persons or property caused by the defect
2.      a product is defective when, at time of sale or distribution, it contains a mfr defect, is defective in design, or is defective b/c of inadeq instructions or warnings
                                                            ii.      Definition of defects
1.      mfr defect – product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
2.      design defect – when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by seller, distributor, or predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not unrzbly safe
a.       Rix – use negligence std – weigh risk of injury against cost of safer designs
å      Risk/utility factors:
1.      utility of product to the general public and to the specific user
2.      the likelihood it will cause injury
3.      potential for designing a safer product that is functional/rzbly priced
4.      availability of a safer design
5.      Пs ability to avoid harm by safer use of the product
6.      the degree of awareness of the product’s danger which can be attributed to П
7.      mfr’s ability to spread cost related improving safety design. STOPPED
b.      From Moore’s review (4/22)
å      4Cable risks of harm
å      alternative design, if you had used that you would have been able to avoid the risk
å      consumer expectation test is NOT used
å      Risk utility test is used
3.      defect b/c of inad instruction/warning – when the 4Cable risks of harm posed by the product could have been reduced or avoided by providing reasonable instructions or warnings by the seller, other distributor, or a predecessor in the commercial chain of distribution, and omission of the instruction or warning renders the product unrzbly safe.
                                                          iii.      Only 3 types