1. E’ee acted wrongfully, and
1) e’ee conduct was of the kind s/
he was hired to do
Respondeat Superior
2. E’ee acting w/i scope of
employment
2) w/i hours and spacial
boundaries
3) action at least in part motivated
by employer’s interest
Vicarious Liability
1. principal creates appearance
of an agency relationship, and
knows/permits/represents agent
as having the authority
1) 3rd party relies on this
representation
Apparent Agency
2. 3rd party’s detrimental reliance
2) p change in position in reliance
on the representation
Omission/Comission
Doc/Pati, transport, custodial
Special Relationship
promise & reliance
(social companionship)
Affirmative duty exists itself
Creation of Risk
Creation of harm
Begin to Rescue
leave worse off?
Affirmative duty to 3rd party
no duty
Trespasser
LO/Entrants
Tarasoff: Doc/Pati/victim
note exceptions: discovered/frequent/child
Licensee
duty to make safe/warn known danger
Invitee
duty of rxb care to warn/protect
In immun. for intentional, wanton or fatal acts
[Minority] total or no immun.
Duty
Uniquely parenting authority
Parental Immunity
probable unrxb test
[NY] immune if negligent supervision
[Majority] Carved out Immun.
not immune if duty to world vs.
immune if duty to child
providing services/facility
for replacement supplement of
private activities
not immune if
Government
Risk creation; promise & reliance;
begin to act
discretionary behavior
immune if
protection from external harm
[Majority] Zone of Danger - Falzone
Direct
NIED (no eggshell)
rxb fear of imminent harm
resulted in SED and substantial
bodily injury
[Minority] Highly probable - Gammon
Indirect
FOS and highly probable; SED
Portee Factors
Loss of Consortium
Adams Factors or BPL
Heightened standard of care
(common carrier)
Reasonable Person Standard
Children; emergency; physical
disability; distinct apparent insanity
Exceptions
Role of judge and jury
Custom
relevant to the sort of risk; factor
Safety statute
Factors
Breach
prevent this type of harm
protect this class of p?
Statutes
[rare] Negligence per se; some evidence
4 approaches
Negligence per se w. excuse (judge)
Rebuttable presumption (jury)
circumstantial evidence
Proving breach
type of event more likely than not
due to negligence
res ipsa loquitur
instrumentally within D’s exclusive
control
Medical Malpractice
P contribute?
Informed consent
reasonable certainty >50%
Loss of Chance
but-for
Cause in Fact
JSL
JSL damages/contribution/settlement
Market share (SL)
Causation
national market share & variations
Eggshell P rule (take P as is)
FOS type of harm (Wagonmound)
Proximate Cause
Directness (Polemis)
Palsgraf (Zone of Danger + Dissent)
Pure: reduce by P’s comparative
fault [for essay]
[Majority] Comparative N
P’s fault
not-as-great-as
Modified
[Minority] Contributory N
Uniform Act: nature of conduct +
causal relationship
not-greater-than
last clear chance exception
Affirmative Defenses
no duty of care, D exculpated from duty
Express AoR
Tunkl Factors: validity of an
exculpatory K
Assumption of Risk
Primary
Implied AoR
injury likely in normal course of even
sports IAR
P knowledge of risk + voluntarily proceeds
Secondary
1. intent
2. Harmful contact (HC) or
Offensive Contact (OC)
Battery
3. cause
Explicit removal of consent
1. intent
2. rxb fear resulting from
Assault
3. P’s apprehension of
4. Imminent bodily harm
5. Causation
1. Intent
Intentional Harm
False Imprisonment
2. unlawful restraint (5 factors)
3. Awareness or harm
1. intent or recklessness
2. extreme & outrages conduct
IIED
3. Causation
4. SED
5. Physical Injury
Consent
Self Defenses
Defenses and Privileges
Protection of Property
Necessity (incomplete)
1. probability of harm
2. magnitude of harm
3. inability to eliminate harm/damage w/ due care
R2d. Factors
4. extent to which the use is not common usage
5. inappropriateness of activity to locale vs common to locale
6. extent to which the hazard of activity ?
value of activity to community
Strict Liability
wild animals
loss-spreading
Kings factors
Theoretical Perspectives
loss-avoidance/reduction
loss-allocation
administrative efficiency
Posner’s economic analysis of the law
moral theories
1. D places product on market
2. normal use of product
Traynor’s Theory: SL when
3. customer cannot be expected
to inspect the product afterwords
4. product causes injury
Manufacturers
Potential D
Retailers
Suppliers of components
Users & consumers
Potential P
passengers
bystanders
Manufacturing Defect (MD)
Products Liability
Design Defect (DD)
Risk/Utility test
Ortho factors
Consumer Expectation test
1. is warning necessary
Categories of defects
rxb warning test
Warning Defect (WD)
2. if so, was warning adequate
R3d Factors
Heading presumption
inherent risk; risk discovered after distribution
R3d: P’s N reduces damages if
fail to identify defect
Defenses
Comparative Responsibilities
Misuse
Compensatory
Wrongful Death/Survival Action
Damages
Punitive
Nominal
Wrongful Death: by executor of
estate on behalf of survivors
Survival Action: by survivors
on behalf of the estate
punish D for wrongdoing
limited to egregious wrongdoing (motive and conduct)
recognizes P was wronged
1. E’ee acted wrongfully, and
1) e’ee conduct was of the kind s/
he was hired to do
Respondeat Superior
2. E’ee acting w/i scope of
employment
2) w/i hours and spacial
boundaries
3) action at least in part motivated
by employer’s interest
Vicarious Liability
1. principal creates appearance
of an agency relationship, and
knows/permits/represents agent
as having the authority
1) 3rd party relies on this
representation
Apparent Agency
2. 3rd party’s detrimental reliance
2) p change in position in reliance
on the representation
Omission/Comission
Doc/Pati, transport, custodial
Special Relationship
promise & reliance
(social companionship)
Affirmative duty exists itself
Creation of Risk
Creation of harm
Begin to Rescue
leave worse off?
Affirmative duty to 3rd party
Trespasser
LO/Entrants
Licensee
Invitee
Tarasoff: Doc/Pati/victim
no duty
note exceptions: discovered/frequent/child
duty to make safe/warn known danger
duty of rxb care to warn/protect
In immun. for intentional, wanton or fatal acts
[Minority] total or no immun.
Duty
Uniquely parenting authority
Parental Immunity
[Majority] Carved out Immun.
probable unrxb test
[NY] immune if negligent supervision
not immune if duty to world vs.
immune if duty to child
providing services/facility
not immune if
Government
for replacement supplement of
private activities
Risk creation; promise & reliance;
begin to act
immune if
Direct
NIED (no eggshell)
discretionary behavior
protection from external harm
[Majority] Zone of Danger - Falzone
[Minority] Highly probable - Gammon
Indirect
Portee Factors
Loss of Consortium
Adams Factors or BPL
Heightened standard of care
rxb fear of imminent harm
resulted in SED and substantial
bodily injury
FOS and highly probable; SED
Adams Factors or BPL
Reasonable Person Standard
Heightened standard of care
(common carrier)
Children; emergency; physical
disability; distinct apparent insanity
Exceptions
Role of judge and jury
Custom
relevant to the sort of risk; factor
Safety statute
Factors
Breach
prevent this type of harm
protect this class of p?
Statutes
[rare] Negligence per se; some evidence
4 approaches
Negligence per se w. excuse (judge)
Rebuttable presumption (jury)
circumstantial evidence
Proving breach
res ipsa loquitur
Medical Malpractice
type of event more likely than not
due to negligence
instrumentally within D’s exclusive
control
P contribute?
Informed consent
reasonable certainty >50%
but-for
Cause in Fact
Loss of Chance
JSL
JSL damages/contribution/settlement
Market share (SL)
Causation
national market share & variations
Eggshell P rule (take P as is)
FOS type of harm (Wagonmound)
Proximate Cause
Directness (Polemis)
Palsgraf (Zone of Danger + Dissent)
Pure: reduce by P’s comparative
fault [for essay]
P’s fault
[Majority] Comparative N
Modified
[Minority] Contributory N
Affirmative Defenses
Uniform Act: nature of conduct +
causal relationship
not-as-great-as
not-greater-than
last clear chance exception
no duty of care, D exculpated from duty
Express AoR
Assumption of Risk
Implied AoR
Tunkl Factors: validity of an
exculpatory K
Primary
Secondary
injury likely in normal course of even
sports IAR
P knowledge of risk + voluntarily proceeds
1. intent
2. Harmful contact (HC) or
Offensive Contact (OC)
Battery
3. cause
Explicit removal of consent
1. intent
2. rxb fear resulting from
Assault
3. P’s apprehension of
4. Imminent bodily harm
5. Causation
1. Intent
Intentional Harm
False Imprisonment
2. unlawful restraint (5 factors)
3. Awareness or harm
1. intent or recklessness
2. extreme & outrages conduct
IIED
3. Causation
4. SED
5. Physical Injury
Consent
Defenses and Privileges
Self Defenses
Protection of Property
Necessity (incomplete)
1. probability of harm
2. magnitude of harm
3. inability to eliminate harm/damage w/ due care
R2d. Factors
4. extent to which the use is not common usage
5. inappropriateness of activity to locale vs common to locale
6. extent to which the hazard of activity ?
value of activity to community
Strict Liability
wild animals
loss-spreading
Kings factors
Theoretical Perspectives
loss-avoidance/reduction
loss-allocation
administrative efficiency
Posner’s economic analysis of the law
moral theories
1. D places product on market
2. normal use of product
Traynor’s Theory: SL when
3. customer cannot be expected
to inspect the product afterwords
4. product causes injury
Manufacturers
Potential D
Retailers
Suppliers of components
Users & consumers
Potential P
passengers
bystanders
Manufacturing Defect (MD)
Products Liability
Design Defect (DD)
Risk/Utility test
Ortho factors
Consumer Expectation test
1. is warning necessary
Categories of defects
rxb warning test
Warning Defect (WD)
2. if so, was warning adequate
R3d Factors
Heading presumption
inherent risk; risk discovered after distribution
R3d: P’s N reduces damages if
fail to identify defect
Defenses
Comparative Responsibilities
Misuse
Compensatory
Wrongful Death: by executor of
estate on behalf of survivors
Wrongful Death/Survival Action
Damages
Survival Action: by survivors
on behalf of the estate
punish D for wrongdoing
Punitive
Nominal
limited to egregious wrongdoing (motive and conduct)
recognizes P was wronged