TORTS II OUTLINE
Spring 2010
Alex Long
I. Immunities
A. Family Member Immunities
-The general concept is that a family member should not be able to sue another family member. Courts provided two main justifications:
(1) Discourages Fraud
(2) Courts didn’t want to interfere with family harmony and unity.
-Many states have abrogated this immunity entirely, but others still retain it with respect to negligence. Four general exceptions:
(1) Property Interest Litigation (like an interest in a trust)
(2) Relationship Terminated (adult child and adult parent)
(3) Intentional Torts
(4) Family Injury from violation of duty owed to a larger class.
Gollier v. White – Fraud is a key concern, particularly when a family would be compensated by insurance. Foster child injured in a tractor accident, immunity is abrogated expect when:
(1) Ordinary Parental Discretion
(2) Exercising Parental Authority
Commerce Bank v. Augsburger – Be aware of how broad the ordinary parental discretion thing applies, provisions of food, care, clothing, medicine, housing…
B. Charities
-Traditionally charities were held immune so as not to divert charitable donations to paying lawsuits. There were several exceptions:
(1) Not exempt if the charity has insurance
(2) Often no respondeat superior liability to its servants
(3) No immunity if people pay for their services
(4) No immunity for collateral or commercial activities
(5) No immunity for intentional or reckless torts
-TN has immunity exceptions for (1) and (4) and probably (5) as well.
C. Governmental Immunity
1. Sovereign Immunity
-The king is never liable. TN and the Federal government both have a presumption of immunity and are only sue-able in certain situations.
2. Discretionary Immunity
-Applies when the government exercises discretion that is vested in some form or another at the policy making or discretionary level. Small v. big scale.
Riss v. City of New York – Police don’t respond to a woman’s needs. Police and law enforcement are a scarce resource. The distribution of this scarce resource will almost always be a pure policy decision. Now if a cop arrives and then screws up, or sees a woman being assaulted and decides to ignore it, that might be actionable.
Harry Stroller v. City of Lowell – Firemen elect not to use sprinklers inside violating industry standard. This is not a big scale policy decision but on the ground by the firefighters which exposes them to liability.
3. Public Duty Doctrine
-If a statute imposes a duty, it is a duty owed to the public at large, not to a specific member of the public. In order for the government to owe an individual duty, there must be a “special relationship” to create an exemption to the public duty doctrine.
(1) There is direct contact or privity between the governmental agency and the plaintiff which sets the latter apart from the general public.
(2) There are express assurances given by a public official or agency
(3) Giving rise to justifiable reliance on the part of the plaintiff
DeLong v. County of Erie – Special relationship between the 911 operator and the victim created an expectation under the public duty doctrine.
Thompson v. County of Alameda – violent offender threatened to kill when released. Because he did not name a specific victim, then the public duty doctrine still holds.
II. Vicarious Liability
Vicarious Liability = liability without fault based on the acts of another.
A. Respondeat Superior
-The matter of holding the employer liable for the torts of the employee. Requires:
(1) That the employee was actually employed by the employer
(2) Whether the employee was within the scope of employment
B. Scope of Employment
-An employee is acting within the scope of employment when the employer had the ability to control the employee’s actions.
Enterprise Liability – Liability if the harm arises from a risk that was typical or broadly incidental to the job he was doing or the enterprise with which he was involved.
General Test:
Where the actions:
– Foreseeable?
– Predictable?
– Neither startling nor unexpected?
– Intentional Tort? Degree of Seriousness
– If the employer’s tort is negligence, then it is easier to find that it was anticipated. See ultrasound case Lisa M v. Henry Hospital.
-Just because an employer forbids something, it doesn’t shield him. It might make it more foreseeable.
Use these factors to determine if it is foreseeable:
(1) Time/Space – was he or she on th
a presumption against finding that someone is and independent contractor, the above control test is applied under (2)(a).
Independent contractor – “Here is the result I want, you do it how you want to.”
Employee – “Here is the result I want, and achieve it this exact way.”
4. Non-delegable Duties
You can contract out a job but you cant contract out a duty. This is an acknowledged exception for inherently dangerous work to the independent contractor rule.
Rst.2d § 427. Negligence As To Danger Inherent In The Work: One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
Rst. § 416: Work Dangerous In Absence Of Special Precautions: One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer.
D. Other Forms of Vicarious Liability
(1) Partnership
(2) Joint Enterprise
(3) Concert of action, conspiracy, aiding and abetting
(4) Tacit agreement to participate in tort
(5) Entrustment of Vehicle
(a) Negligent entrustment
(b) Owner in the car with right of control
(c) Ordinary Bailment
(d) Owner consent statutes
