I. Assumption of Risk
A. Definition
1. Knowledge of a Particular Risk
a.P must know of the particular risk along w/ its magnitude & implications.
2. Voluntarily
a.P must have voluntarily exposed herself or her property to the risk
3. Assuming the Risk
a. The P, by voluntarily exposing herself or her property interests to a risk, is deemed to consent to that risk.
B. Classification of Assumption of Risk
1. Express Assumption of Risk: Exists when, by K or otherwise, a P explicitly agreed to accept a risk.
It is a complete defense
Can be invalidated when it would be contrary to public policy
Usually will NOT be invalidated if assumption of risk of negligent conduct (Sketching) except when there is such a gross disparity in bargaining power between the D and the P that the P had little choice. (gun to head)
2. Implied Assumption of Risk: exists when the P’s voluntary exposure to risk is derived merely from her behavior.
i. Majority: Allow IAR to be absorbed into comparative negligence (making it a partial defense)
ii. The 3 Approaches:
a. Assumption of Risk Remain a complete defense
i. If P negligently fails to notice risk= partial defense for the D and results in contributory negligence
ii. If P voluntarily assumes risk= same as consent and should be a complete defense.
b. Questioning the Reasonableness of the Assumed Risk
a. Unreasonable IAR
II. Strict Liability
A. Introduction to Strict Liability (SL)
1. Liability w/out intent or negligence
2. Rationales include: economic and social policy reasons
3. Even though it’s not the D’s intent at times, they are doing the activities with the chance of a benefit from it and therefore must also assume the risks that come with it.
4. Strict liability is NOT absolute liability, there can still be defenses.
B. Animals
1. Trespassing-Common Law (CL): Keepers of livestock who tends to roam are SL for all harm. Exception: No SL where animals on hwy stray onto adjacent land
a. Modern: there are 4 approaches:
i. SL as in CL
ii. No liability w/out fault (Negligence)
iii. Fencing out (If P Properly fences out, D is SL); or
iv. Fencing in (D is SL if she fails properly to fence in).
2. Dangerous-first determine if wild or domestic (definition vary by location)
a. Wild- most jurisdictions impose SL for wild species w/ dangerous propensity.
i. Harm suffered must be directly related to dangerous propensity.
ii.We don’t look at the animal in particulars personality but what the demeanor is of that species is.
b. Domestic- SL if owner knows or has reason to know of animal’s dangerous propensity. Check for local statutes and defenses like warning signs.
C. Abnormal dangerous activities
1. Reylands v. Fletcher: “non-natural” use of the land (means non-customary)
a.is some one bring or does something to the land that is non-customary
2. Rest. 2d (§520): “Abnormally dangerous” activity.
a.Six factors to determine (we use this):
i. Risk of harm;
ii.Severity of harm;
iii. Inability to eliminate risk w/due care; (most important, this tells you when to switch from SL to Negligence)
iv. Whether activity is matter of common usage;
v.Inappropriateness of activity to place where carried on;
vi. Weight value of activity to community against its dangerous, unavoidable risk.
D. Four Step Approach to SL Problems
1. Determine if within class of SL animals or SL activities (abnormally dangerous)
2. Determine whether the harm suffered was within the inherent risk
3. Proximate Causation-Analyze foreseeable harm and any intervening events.
a. (Maj. Prox cause Min. no intervening ever cut off liability, Rest. Act of nature will not be deemed to superseding but intentional act might.)
4. Defenses
a. Contributory Negligence-not a defense
b. Comparative Fault- depends on jurisdiction. Some will use to decrease recovery.
c. Comparative Negligence
d. Assumption of Risk- is a defense. Knowing and voluntary.
d. D’s lack of scienter (owner knew animal or activity could be dangerous) – Unless SL by statute, most jurisdiction require D’s knowledge of dangerous domestic animals or activity.
e. Privilege (legal sanctions)- e.g. government immunity or private D doing things for public good that allow them to do dangerous activity and have immunity while doing it
III. Vicarious Liability
A. Analysis:
1. Analyze tortfeasor’s actions. Discuss elements and defenses for each action
a. Negligence
b. Intentional tort
c. Strict liability
2. Look for special relationship that would lead to vicarious liability for tortfeasor’s actions
a. Employer/employee
b. Employer/Independent Contractor
c. Joint Enterprise
d. Bailor/Bailee
3. Apply rules for each relationship
B. Employee
1. Rule: Vicarious liability as long as employee is acting within the scope of employment.
a. Amount of control over torfeasor
b. Was torfeasor motivated to serve or further employers purpose
c. Character of act: how close to what employee is employed to do
2. Policy reason for VC
a. Deep pocket; which D has ability to pay
b. Enterprise to pay its way; i.e. VL is a cost of doing business (they get the benefit of having employees to do work for them)
3. Deviation rule: if it is only a detour, then the employer can still be found vicariously liable.
a. Frolic: a deviation that is sufficiently related to the employment to fall within its scope.
b. Detour: the pursuit of the employee’s personal business as a substation deviation from or an abandonment of the employment. 7 factors to determine it is a detour:
i. The employee’s intent;
ii. The nature, time, and place of deviation;
iii. The time consumed in the deviation;
iv. The work for which the employee was hired;
v. The incidental acts reasonably expected by the employer; and
vi. The freedom allowed to employee in performing his job responsibilities.
4. Going and coming rule: if employee is coming to or going from work, they are not within the scope of their employment and therefore no VC on employer.
a. Foreseeability exception: (modern trend) The employee IS within the scope of her employment when there is a risk that arises from or is related to employment. (Bussard-it was forseeable that employee would be sick from pesticides and not fit to drive home)
i. Even if personal aspect at work, if they are at work, there can be VL
ii. Indemnification is a possibility
B.
C. Independent Contractor
1. Rule: no vicarious liability for acts of IC
2. Four Exceptions (1 of 4 must apply in order for employer to be VC for IC.):
(1) Non-delegable duty (Maloney) duty that can’t be passed on to someone else (mechanic not liable)(2 ways of seeing if duty is non-delegable)
a. Rstmt § 423: where employer carries on some activity that threatens grave risk of serious bodily harm if not properly maintained (pilot of plain)
b. Rstmt § 424: needs to be a statute/regulation that imposes a duty to safeguard others.
(2) Employment negligence (e.g. in hiring or supervision of IC) (this is more direct liability then VL)
(3) ER hires IC to perform inherently dangerous activity. Activity need not be as dangerous as need for SL.Test: peculiar or particular risk of harm that calls for more than ordinary precaution
a. Transporting giant logs
b. Selling ice cream to children from truck on busy street
c. Collateral negligence: when harm is NOT from what made the activity inherently dangerous and there is no VL. Negligence of the IC has to be related to the risk that made the activity inherently dangerous in the first place. If its not, its collateral negligence.
(4) Illegal Activities
D. Joint Enterprise (disfavored doctrine, mean tries to only use it in a commercial context)
1. Used on some one who is engaged in the same activity as the tortfeasor.
2. 4 Prong test for joint enterprise: (Popejoy)
a. An agreement, express or implied, among the members of the group;
b. A common purpose to be carried out by the group;
c. A community of pecuniary interest in the purpose, among the members, and
d. Roughly equal right of control of enterprise.
o Popejoy v. Steinle: restricts joint enterprise because court didn’t want to impose commercial meaning on family activity of parents buying calf for their daughter
E. Bailment
1. Si
Intentional: If D intentionally misrepresented, the intended P’s included all in the “expected affected class.” Rstmt §533 [broadest scope of the 3]
i. {total absence of privity and relied upon by some 3rd party}
ii. This goes to any one who the actor intends or has reason to expect to have reliance.
b. Negligence: If D was negligent when s/he made the misrepresentation, P’s limited to the “intended class”. (B>PxL)
i. Wisconsin “Foreseeability” Approach {Broadest test} (Citizen state Bank)
a) Liability will be imposed on these accountants for the foreseeable injuries resulting from their negligent acts unless, under the facts of this particular case, recovery is denied on grounds of public policy. ( prox cause analysis, then breach, then two policy below) (Have an idea that a bank is involved)
Because allowance of recovery would be too likely to open the way for fraudulent claims; OR
Allowance of recovery would enter a field that has no sensible or just stopping point
ii. Restatement SS 552 Approach {middle of the road wise of broadness} (citizen state bank case)
a) What group was actually foreseen in light of what the D was actually told about the purpose of their representation. (know exclusive what bank they will be getting a loan from) (Cali is here, but used to be Wisc.)
iii. New York Approach {Most narrow approach} (Quasi privity) (limited known group)
a) 3 part test to show negligence
1) Must know of particular purpose,
2) Know 3rd party
3) Some sort of conduct linking D and P
b) Even in the absence of actual privity, if each of these 3 elements is established, it is to be equivalent to privity
c. Strict liability: If D innocently made a misrepresentation, P class very limited. {There MUST be privity}
i. Misrepresentation be made directly, that there be privity.
4. P’s Justifiable Reliance
a. General Rule
1. Actual Reliance: P must have acted in reliance on misrepresentation; AND
2. Reasonable reliance: a RP would have relied on the misrepresentation
1. only a duty to investigate if P comes into information that would make some one suspicious
b. Exceptions to General Rule:
i. If D knows P is particularly susceptible, P need not establish that A RP would have relied.
ii. If the P has special knowledge beyond that of a RP standard; may be higher than that of RP (E.G. Reasonable expert). (they did not actually rely because they knew it to be false)
i. One can not close ones eyes to something that is obviously false
c. Fact v opinion
i. Rule: can not rely on a statement of opinion to bring a case of misrepresentation.
ii. General Test: How would statement reasonably be understood in that context (i.e., as fact or opinion)?
a.Saxby v Southern Lands: Quantity=fact / Approximation=Opinion
b. Some statements that no reasonable person would rely on (look at the parties and the statement) (Learned Hand)
iii. Exceptions:
a.If P is aware that D has insufficient information upon which to base statement (misrepresentation), it is more likely to be considered mere opinion (i.e. not justifiable to rely).
b. Circumstances under which it might be justifiable to rely on statement of opinion
i. D has special access to information unavailable to P (goodhouse keeping mag. for good shoes) ; OR
ii. Special relationship between P and D (doctor patient, attorney client); OR
