TORTS—DILLBARY
Brief Outline + Tests Discussed in Class
I. VICARIOUS LIABILITY
A. Respondeat Superior: (rationale: employer best risk avoider) Christensen v. Swenson
1. Tort committed by employee while acting within scope of his employment
2. Scope of employment: Birkner v. Salt Lake County Test; all 3 must be met
a. employee’s conduct must be of the general kind the employee is hired to perform
b. conduct must occur substantially within the hours and ordinary spatial boundaries
c. conduct motivated in part by the purpose of serving the employer’s interest
B. Independent Contractors: Roessler v. Novak
1. General rule is that they are absent from liability. Contract a means to share/exempt risk
2. exception: principal may be held liable for acts of its agent that are within scope of
agency.
3. Types of agencies
a. Expressed: parties explicitly show that they are in agent/principal relationship
b. Apparent: A principal may be held liable for acts that are within agent’s apparent
authority. Only exists if all three elements are present:
1. representation by purported principal
2. reliance on that representation by third party
3. change in position/behavior by third party in reliance on that
representation.
· Only exists when principal creates appearance of agency relation; does not arise from subjective understanding of third party, nor from appearances given by purported agent himself.
II. NEGLIGENCE
A. DUTY: One engaged in risk-creating conduct generally owes a duty to avoid causing foreseeable injuries to foreseeable plaintiffs
No duty unless:
Ø Create/Maintain the risk
Ø Special relationship
Ø Undertake voluntarily to help a victim
Ø Contractual relationship
Ø Statute imposes a duty
A. Special Relationships: affirmative duty to act only arises when a special relationship exists between the parties
1. Harper v. Herman=no duty to warn guest of shallow water
2. Farwell v. Keaton=yes. Companions on a social venture; engaged in a common undertaking
B. Simonsen—defendant motorist knocked into a pole and drove off=duty
C. Superior knowledge—addresses breach, not duty
D. Duty to avoid making a situation worse: Restatement (2) 324: one who, being under no duty
to do so, takes charge
h landlord not tenant)
G. Negligent Entrustment: “Two negligent acts combined”
1. Duty to avoid actions which could cause foreseeable harm: have a duty not to entrust vehicle to person likely to use it in a way that would harm others is
2. It is the negligent entrusting which creates the unreasonable risk
H. Duties of Landowners/Occupiers:
1. Factors considered:
a. Status of person entering land (some states abandoned status system)
i. Trespasser—no permission to enter/remain on land (no awareness of T required)
Duties: general rule is no duty of care; should expect no accomodation
Exceptions: Frequent/known trespassers (actual/ constructive knowledge) p.200
· Duty to warn from hidden artificial danger Owner created
· Duty to take precaution in carrying activities
Children: duty to use reasonable care; Liable for artificial condition on land if (restatement section 339) all apply:
