• to provide a peaceful means of adjusting rights of parties who might otherwise take law into their own hands
• to deter wrongful conduct
• to encourage socially responsible behavior
• to put plaintiff back in their original position
• to vindicate individual rights of redress

1. liable

2. guilty

OR

***Garratt v. Dailey

• don’t wan’t wrong doer to be unjustly enriched
• want to hold people accountable for their actions.  

Act (touching) –Cole v. Turner Touching can be through an extension of your body. (Fisher v. Carrousel: where grabbing P’s plate constitutes battery). Intent to cause harm OR offense -Remember, KWSC qualifies as intent (Wallace v. Rosen: where teacher touched Wallace on the back. Conditions on stairway during fire drill were example of “crowded world”) Result of harmful or offensive contact - Eggshell Skull Doctrine: You take your victim as you find him/her. (****Note 2, pg. 35: Vosburg v Putney: kick on the shin had effect of lighting up an infection from previous injury and d responsible for all damages even though extent of injury could not have been forseen)

  Notion of a crowded place: If you touch someone just trying to get around them, understandable. Not every touching is harmful or offensive, but has to be taken in full circumstances of the case. -Wallace v. Rosen  

 If you touch someone just trying to get around them, understandable. Not every touching is harmful or offensive, but has to be taken in full circumstances of the case. -Wallace v. Rosen  `

(Parvi v. City of Kingston: where focus was on whether P was conscious at the time of the imprisonment, not on whether he could recall the event at a later time.)  

Actual or physical barriers (Whitaker v.Sandford: where boat off of the yacht was the equivalent to a key to get out of a locked room, and impassible sea is physical barrier to escape.)

Physical force, Threat of force—if imminent enough, Duress

Confinement by asserted legal authority (Enright v. Groves: where Officer Groves had proper legal authority, but did not bring p to the station for a proper legal violation. Brought her to the station because she did not produce her driver’s license. No statute that requires p to show her DL on demand) NOTE: If reasonable person has a way to escape, then it is NOT false imprisonment.

Hardy v. LaBelle: No threat of force, not told that she could not leave, not unlawfully restrained against her will.

NOT false imprisonment: moral persuasion or guilt trip, fear of losing job, clear oneself of suspicion (e.g. you can’t leave until I figure this out), threat of a future action  

 Note: A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing with the actor has placed thereon. (Rogers v. Board of Road Com’rs for Kent County)

Elements

Pearson v. Dodd: information that was copied, not considered to be property subject to protection by suit for conversion.

Recall discussion in class of notes on page 84. 

1. express- Mohr v Williams – express consent can be defeated. •diseased condition of left ear was discovered after she was unconscious for the operation on her right ear that she consented to. Technically, surgeon liable for battery, but he really ended up enriching the patient, so his damages reflected that good motive that could not be taken into account in the battery analysis.

2. implied•(O’Brien v. Cunard: in light of the surrounding circumstances, in response to Doctor’s statement that he should vaccinate her again, woman holding up her arm in a line of women to be vaccinated, with no objection is held to have consented.)

(1) the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent), (2) there is a risk of serious bodily harm if treatment delayed, (3) a reasonable person would consent to treatment under the circumstances, and (4) the physician has no reason to believe this patient would refuse treatment under the circumstances. 

If Doctor discovers conditions not anticipated before the operation was commenced, which, if not removed, would endanger life or health of the patient, he woulc be justified in extending the operation to remove and overcome them through ________ consent. 

What is the proportionality principle with respect to self defense? 

 limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. (differences in age, size, and relative strength are proper considerations).  In Texas, no duty to retreat.

Some jurisdictions use the in-their-shoes doctrine: You are only authorized to use force if you would have been authorized to as that party.  

Other jurisdictions will allow defense of third persons if you reasonably believe that they are in need of aid.

*Proportionality Principle applies here too: You’re only authorized to use as much force as they could use if they were defending themselves. 

 unlawful intrusions. Privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the defendant. Katkov. Briney: No spring devices in protection of property. Life is more important that protection of property. 

Fresh pursuit: limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue laps of time during which pursuit has not been commenced, or has come to a halt, will mean owner is no longer privileged to fight himself back into possession, but must resort to the law. *No privileged force against privileged force.  (e.g. Hodgedenv. Hubbard Ds in pursuit of P because he stole their stove; Ds took the stove away by force and then P pulled a knife on Ds; D not privileged to use force against the privileged force of D to pursue and recover their property.)

Trespass and conversion allowed when it is reasonably necessary to avert a public disaster. The government is not liable for damages caused during a state of emergency.

Surroccov. Geary: Mayor of SF justified destroying a building and blowing it up to stop the progress of a fire that was raging. 

Private: Vincent v. Lake Erie Transp. Co.  A person is privileged to trespass/convert property in order to (1) protect any person from death or serious harm. (2) only compensatory damages.                  (3) Mistake: Even if the trespassor is under a mistaken idea of emergency, it does not negate that person’s privilege to trespass if it was a (4) reasonable mistake. Harm prevented must outweigh harm (5) caused

(1) Authority of Law (2)-Mistake negates this privilege.

Authority must be duly commanded or authorized by law to do what he does, then he is not liable for doing that.

age, sex, condition of child, nature of offense and apparent motive, influence of child’s conduct as example on other children in same family, whether force or confinement is reasonably necessary and appropriate to compel obedience, whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm. 

Generally, restraint or detention, (1) reasonable under the circumstances and in time and manner, (2) imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful.  

Duty: The _____ of care never changes, but the_____ of care changes based on the circumstances. 

1. standard 

2.  duty

Describe the hand formula for negligence:

Delair v. McAdoo: There is a duty to know how to operate safely in society. This is a rigid rule.

to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances When the activity the child engages in is inherently dangerous, the child should be held to an adult standard of care. Activities considered as adult activities--driving a car, motorcycle, motor scooter, playing golf, bicycle riding, deer hunting, downhill skiing, building a fire

It doesn't.  Insanity is not a defense to liability. 

**this is in direct reference to a pre-existing insanity of a permanent nature. “Statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances.”

if treated as a mental illness, no exception made

if considered a physical condition, then d held to standard of reasonable person with alzheimers

When an attorney contracts to prosecute an action on behalf of his client, he implies that ____ (list 3 things)

 (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily posses; (2) he will exert his best judgment; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and application of his knowledge

1. possess the degree of skill and learning which is possessed by the ordinary member of the medical profession in good standing 2. in the community in which he practices 3. To apply that skill and learning, with ordinary and reasonable care, to cases which come to him for treatment. *Note: Specialist is going to be held to a higher standard then a general practitioner. 

-She must have done something in her treatment of her patient which the recognized standard of good medical practice in the community in which she is practicing forbids in such cases OR

-She must have neglected to do something which such standard requires.

The standard of medical practice in the community must be shown by affirmative evidence (expert testimony) (burden on p).

-Negligence is never presumed, but must be affirmatively proven. No presumption of negligence arises from mere fact that treatment was unsuccessful, failed to bring the best results, or that patient died -Testimony of other physicians that they would have followed a different course of treatment than that followed by d is not sufficient to establish malpractice (unless it appears that the course of treatment followed deviated from one of the methods of treatment approved by the standard in that community).

Locality Rule: What a reasonable physician in the community would do?  Rule originally designed to protect doctors in rural areas who, because of inadequate training and experience, and the lack of effective means of transportation and communication, could not be expected to exhibit the skill of urban doctors. Generally, purported disparity between the skills of practitioners has for the most part been eliminated.

National Rule: What a reasonable physician in that field or area of practice would do ***National custom is the majority view.

Consent to medical treatment, to be effective, should stem from an understanding decision based on adequate information about the treatment, the available alternatives, and the collateral risks.

  -Full disclosure of all material risks incidental to treatment must be made.  If there is a risk that is beyond what is foreseeable in the operation, then no cause of action for lack of informed consent.

To establish a lack of informed consent, what must a plaintiff prove? (4 elements)

Burden: P has burden of establishing the prima facie elements of the case and D has the burden of proving an exception to his duty, and thus a privilege, not to disclose, as an affirmative defense.

Rule: A physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment. Scope of the communications must be measured by what information a reasonable person in the same or similar circumstances would find material to the decision to consent to the treatment.

Violation of the statute does not create liability, it just shows that there was a duty, and that it was breached.

You still have to show that the violation of the statute was the proximate and legal cause of the injury. 

Does the mere fact that the legislature adopts a criminal statute mean that the court must accept it as a standard of criminal liability?

Heightened duty, but doesn’t rise to the level of being an insurer like a common carrier. Has a duty to reasonably protect their customers…measuring all the risks. shopkeeper has an affirmative duty to keep a safe, clean shop.  Plaintiff has to prove that condition existed for a sufficient time that a reasonable shopkeeper could have known about the condition to remedy it. Eg, if banana had been on ground awhile, as evidenced by its color and condition, if plaintiff can prove premesis hasn't been inspected within a reasonable period of time, an inference can be drawn that the condition did exist long enough for the shopkeeper to have discovered it.  if dangerous condition created by the store's method of sale, notice requirement dissolves.  no need t oprove actual or constructive knowledge of the specific condition.

store had actual or constructive knowledge of a condition on premises

D has duty to take care that barrels don’t roll out of the warehouse. Is this proof of negligence? It is not proof, but it is evidence. P does not have to go through all the elements of proof of a negligence action.

D then has the burden to show that the cause of injury was something other than his negligence.

Between the two parties, the D is in the best position to control the risk. 

if coupled with a sufficient showing of its immediate, precipitating cause.  In other words, a jury could draw a conclusion of negligence from this evidence.  No. No need to eliminate all other possibilities.  no expert testimony required.  (measured by the knowledge of ordinary jurors) When it appears that the injury was caused by one of two causes for one of which d is responsible but not for the other, a p must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other.

cases where patients have been injured and no surgeon fesses up.  Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and facts establishing liability. 

(1) Permissible inference-jury may draw on this or not. ***Texas Rule. Rule used in this case.

(2) Rebuttable inference that a jury can reject if they want to. Shifts burden to defendant to d to rebut the presumption.

(3) Strict res ipsa totally shifts the burden to the defendant.

No.  Mere possibility that an accident might have happened without the negligence of D does not break the chain of causation between negligence and harm.

Proximate cause.  In an action for negligence, a p must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the d or its agents was the proximate cause of the p’s injuries.  Neither a suspicion nor a speculation is enough to defeat a motion for summary judgment. It is not enough to prove d MIGHT have caused the harm, he must prove d more likely than not caused the harm.   

Post hoc ergo propter hoc: “after this, therefore because of this”: FALLACY confusing sequence with consequence.

 D MIGHT be liable if p can show that d’s negligence caused a statistical reduction in chance of p’s survival. P must demonstrate that d's acts or omissions have increased the risk of harm to another, which was a substantial factor in bringing about the resulting harm.  requires medical testimony.

Damages should be awarded to injured party or his family based only on damages caused directly by premature death (lost earnings, additional medical expenses).

Four factors to consider in determining whether to admit scientific testimony:

  a. whether theory or technique employed by expert is generally accepted in scientific community

  b. whether it’s been subjected to peer review and publication

  c. whether it can be and has been tested

  d. whether the known or potential rate of error is acceptable. 

e. whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation

Is it Relevant: Expert testimony RELEVANT to task at hand? (logically advance material aspect of proposing party’s case). Requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.  

Concurrent causes - what are they?  Who has the burden of proof?

Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible.When two forces combine, and either force alone was sufficient to cause harm, both are liable as long as each was a substantial factor in the harm. Burden shifts to ds for each to absolve himself if he can (ordinarily in a better position to offer evidence)

to not recognize proximate cause would subject one to a liability against which no prudence could guard. 

forseeable

remote

you take your victim as you find her.  the extent of the injury to a person need not be forseeable.

-The risk reasonably perceived defines the duty to be obeyed and risk imports relation. Palsgraf.

Court must ask itself whether there was a natural and continuous sequence between cause and effect? Was one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes, is effect of cause on result not too attenuated, is cause likely, in usual judgment of mankind, to produce the result, is result too remote from cause in time and in space?

The greater the distance in time and space, the more surely do other causes intervene to affect the result. 

Proximate cause is any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause produces the result complained of and without which the result would not have occurred.

Proximate cause need only be a cause which sets off a ______ sequence of consequences, ______ cause, and which is a ________ in producing the particular injury.

FORSEEABLE 

UNBROKEN BY ANY SUPERSEDING

SUBSTANTIAL FACTOR

Liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the d’s negligence.

-drinker’s voluntary consumption and subsequent negligence was sole “proximate” cause of third party’s injury and that a person who sells or gives liquor to an intoxicated adult drinker was not liable for subsequent injuries caused by his intoxication.

  -Social host only liable for intoxication of a minor

Enright v. Eli Lilly: Patricia Enright developed abnormalities of her reproductive system due to her in utero exposure to DES and these abnormalities resulted in several miscarriages and premature birth of p, Karen Enright.  What is the extent of Eli Lilly's liability and how was it calculated?  Why is a limitation imposed upon Eli Lilly's liability at all?

Held that liability could be imposed upon DES manufacturers in accordance with their share of national DES market if p couldn’t identify manufacturer particularly at fault for her injury. Still, this injury to a mother, which results in injuries to a later conceived child does not establish a cause of action in favor of child against original tortfeasors. reasons to impose limitation to liability: 1. ct has duty to confine liability within its manageable limits.  2. deterrent purposes of tort liability are not unduly impaired.  3. policy favors the availability of prescription drugs even though they carry inherent risks.

No.  Exception: may be a legal obligation to take positive steps to effect rescue of a person who is helpless or in a situation of peril, when d is a master or invitor, or when injury resulted from use of an instrumentality under control of d.

  -Such obligation may exist although accident or   original injury was caused by p’s negligence, by a   third person’s negligence, or without any fault on   part of the d. 

Ability to foresee injury to a potential p is crucial in determining whether a duty should be imposed.

  -based on d’s knowledge of risk of injury and whether a reasonable person would have or should have known about the risk of injury.

Ultimately a question of fairness and public policy eg. When a spouse has actual knowledge or special reason to know of likelihood that his or her spouse engaging in sexually abusive behavior, spouse has duty of care to take reasonable steps to prevent or warn of the harm. breach of such duty est. prox. cause

Therapist’s duty is to exercise reasonable care to predict danger that they can reasonably perceive. Tarasoff: They did predict the harm here, but they were negligent in failing to WARN. Policy: Risk that unnecessary warnings may be given is a reasonable price to pay for lives of possible victims that may be saved.You have a duty to warn only if there is an identifiable victim of an imminent harm.use hand formula comparison. Rule in Texas: All doctor patient communications are confidential for 100 years after the death of the patient. Physicians may call law enforcement, but they have no obligation to do so. 

1.   In Texas, Not a duty, but in the case of HIV, when a physician knows one is HIV positive, they can inform the spouse. They cannot inform gf or someone who is not married to that person.

 2.  There is a duty to tell daughter that she is at risk so she can mitigate it. Yes, duty for doctor to warn an identifiable victim of imminent harm that they have a high risk of developing a cancer. That duty can be fulfilled by telling the patient that they need to tell their daughter.    

Limits what would be an open-ended realm of recovery from all people who are affected by contracts in which they have not bargained any exchange for. Would be more costly third-party insurance. Would be difficult to form actuary risk policies for insurance companies. Too difficult to determine who all was affected by the negligence (implausible). Limiting—identifiable, transparency.

No recovery for mental disturbance without accompanying physical impact or injury Exception: compensation for a purely mental component of damages where d negligently inflicts an immediate physical injury has always been awarded as parasitic damages. If definite and objective physical injury produced as a result of emotional distress proximately caused by d’s negligent conduct, p can recover in damages for such physical nied. **No duty in Texas not to negligently inflict emotional distress. Exception to NIED: physical impact or handling the body: Medical school losing body. Even with Texas rule, if you had a mishandling of the body, you can recover. Loved one dies in hospital and hospital accidentally loses corpse…then you have a claim.

  (1) whether p located near scene of accident as contrasted from one who was a distance away from it

  (2) whether shock resulted form a direct emotional impact upon p from sensory and contemporaneous observance of accident as contrasted with learning of accident from others after its occurrence.

  (3) whether p and victim were closely related, as contrasted with an absence of any relationship or presence of only distant relationship.

action brought on behalf of decedent’s estate in the name of children. Court recognizes action for viable child in utero. Does not apply to a stillborn fetus. If you’re a fetus and you’re injured, you can sue, but if you are a stillborn fetus and you die, then you can’t sue.  

can’t measure the loss of a dead child.

Majority view-fetus is not a person—no recovery for death unless state’s wrongful death statute provides for it. Texas view is now back in line with majority view. 

Generally, there is no duty upon landholder to protect persons outside the premises re: most conditions that arise in the state of nature.

Exception: trees. Landowner liable for negligence if he knows or should have known that the tree is dead/damaged and fails to take reasonable precautions. Foreseeability alone is not enough to show actual or constructive knowledge. Exception: inherent nature of an artificial condition: eg, a baseball park (Salevan v. Wilmington Park) Inherent nature of game of baseball is such as to require landowner to take reasonable precautions for the protection of traveling public. D either knew that baseballs went out of its park or should have known. While d took precautions to protect people passing along the street, those precautions were insufficient.

Yes.  When presence of trespasser is discovered, there is a duty to use ordinary care to avoid injuring him by active operations.

Invitee: one who goes on land in furtherance of owner’s business.

Owner of premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. Duty to inspect premises to minimize dangerous conditions. 

. Where occupier of land is aware of condition and hasn’t warned person, they’re liable.

Not usually.  There are 7 exceptions:

a landlord is under a duty to exercise ordinary care in the maintenance of the premises. Recognizes an implied warranty of habitability in an apartment lease transaction. WRT foreseeable criminal acts:  where landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect crimes to happen again, and has the exclusive power to take preventative action, it does not seem unfair to place upon landlord a duty to take those steps which are within his power to immunize the predictable risk to his tenants.  

}Contributory Negligence

If d had opportunity to avoid the accident after the opportunity was no longer available to the p, the d is the one who should bear the loss.

p's recover as in pure jurisdictions, but only if p’s negligence does not exceed 50% or 51% in some states.  In cases of multiple tortfeasors, p will be entitled to recover so long as p’s fault is less than the combined fault of all tortfeasors. 

Is the risk within unambiguous terms of agreement?

Does the contract violate public policy? 

Requires:

  -Tolling for discovery (in medical malpractice cases)

  -Tolling through age of maturity.

Nongovernmental charitable institution is liable for its own negligence and for negligence of its agents and employees acting within the scope of their employment.  

Federal Tort Claims Act-United States has waived immunity for tortious acts

Exceptions-where immunity will still attach:

 Legislature has the power to modify the form and measure of recovery for an injury, as long as it does not violate the state’s remedies clause. Constitution’s remedy clause provided that a legislature may not entirely eliminate a remedy provided at common law. 

everyone

no one

how to allocate governmental resources.

NO.  failing to fulfill an undertaking to provide police protection does not result in municipal liability unless shown that police conduct increased the risk in some way.

- to deter bad behavior and punish

1.past physical and mental pain, 2.future physical and mental pain, 3. future medical expenses, 4. loss of earning capacity, 5. permanent disability and disfigurement.

Expert testimony by medical and economics experts 

Expert Testimony doesn’t have to be specific as to each item in compensatory costs.

Court can’t overrule their verdict unless it is excessive.

Payments made to or benefits conferred on injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which tortfeasor is liable. 

1. rebut p’s testimony that she was compelled by financial necessity to return to work prematurely or forgo add’l medical care.  2. to show p had attributed his condition to some other cause  3. to impeach p’s testimony that he had paid his medical expenses himself.  4. to show that p had actually continued to work instead of being out of work, as claimed 5.  gratuitous or discounted medical services are a collateral source not to be considered in assessing damages due to personal injury p. 

***May not be available to ps who have other reasons for failing to mitigate. (religious reasons).  

Market value defined by what item could have been sold for on open market at the time of the wrong. Exception: where chattel has no market value because you can’t sell it. If it only has sentimental value, then you can recover value to owner. Pets: probably no recovery for sentimental value, emotional distress, etc. 

Facts warranting punitive damages must be established by clear and convincing evidence.  There must be a compensatory claim to bring a punitive damages claim, but p is not necessarily entitled to punitive damages.

 —Financial condition of d is relevant 

1. degree of reprehensibility of d’s misconduct (most important one)   2. disparity between actual or potential harm suffered by p and the punitive damages award  3. Difference between punitive damages awarded by jury and civil penalties authorized/imposed in comparable cases.                                          Penalty should be reasonably predictable in its severity.  A punitive-to-compensatory ratio of 1:1 is a fair upper limit in maritime cases. 

Brought by next of kin/beneficiaries (mom, dad, husband, wife, child of the deceased) for loss of: support (financial support decedent would have provided would he have lived) Monetary value of services decedent provided and would have continued to provide but for his wrongful death (nurture, training, education, guidance that child would have received, plus services decedent performed at home for his spouses. society (love, affection, care, attention, companionship, comfort, protection), Damages for funeral expenses 

Brought on behalf of decedent’s estate for damages up until death. Can only bring this if there is suffering before death. If instant death, no survival action

Seek damages for conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute; allocate the loss of benefits of the survivors to the action for wrongful death.

Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount.  P can collect from any one of them or any group of them.

1. Concerted action

2. Failing to perform a  common duty to p 

3. Ds who act individually to cause an indivisible harm. 

NO•apportioning fault on comparative basis does not render indivisible injury divisible for purposes of joint and several liability. Concurrent tortfeasor liable for whole of an indivisible injury when his negligence is proximate cause of that damage

When injury is indivisible, p can only be paid once. Can’t recover twice for the same injury. 

When 2 or more persons liable for same harm and one of them discharges the liability, that person can recover contribution from the other joint tortfeasor, unless the other had a previously valid settlement and release.

 In order to obtain contribution, the injured plaintiff from which the right of contribution develops, must have a valid cause of action against the party from whom contribution is sought. 

 Release of one joint tortfeasor is the release of all joint tortfeasors unless the right to sue others is reserved.

Preserve the right expressly in the contract in order to avoid this general rule.

defendants effectively settled before trial, then participated in the trial as defendants assisting the plaintiff in her suit against the remaining defendant.

Negative effects of Mary Carter agreements outweigh any potential benefits.

Going and coming rule-you’re not in course of employment while driving to and from work.

Exception: if employee’s conduct within particular enterprise is foreseeable, and not so unusual or startling, then it could be among the other costs of employer’s business. 

Frolic: pursuit of employee’s personal business is a substantial deviation from or an abandonment of the employment. (stops at drug store to buy anniversary card for his wife? Particularly if you had to go off the path of the road a few miles).

Detour: deviation sufficiently related to the employment to fall within its scope. Acts necessary to the comfort, convenience, health, and welfare of the employee are not outside scope of employment. (Stopping to use the restroom)

If frolic, not vicariously liable; if detour, then vicariously liable. 

3. Time consumed in the deviation

4. Work for which employee was hired

5. Incidental acts reasonably expected by employer

6. Freedom allowed employee in performing his job responsibilities

 one who arranges for work to be done by independent contractor is not vicariously liable for that contractor’s torts.

Test for whether a person is an employee or an independent contractor is right to control physical details of the work.  **contractors can establish policies and standards but that is not the same as  supervision, dominion, and control over independent contractor

Apparent Authority-One who employs independent contractor to perform service for another which are: 

(1) Accepted,(2) in the reasonable belief that, (3) the services are being rendered by the employer or by his servants; then you’re subject to he liability of the harm caused by negligence of contractor in supplying such services.

 Created to impose liability vicariously upon one person who is engaged in same activity with another person committing the tortious act.  1. Agreement (express or implied) among  group members 2. Common purpose to be carried out by group 3. Community of pecuniary interest in that purpose among members 4. Equal right to have voice in that enterprise, which gives equal right of control. MUST HAVE A DISTINCT BUSINESS OR PECUNIARY PURPOSE!  eg. Popjoy v. Steinle- buying a calf for 4h

Under some circumstances the negligent conduct of a driver will be imputed/attributed to the owner/passenger of the vehicle to bar her recovery for her own injuries.   Abrogated in most jurisdictions

One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity even though he exercised the utmost care to prevent the harm. 

Generally no strict liability unless there is a dangerous propensity of  which the owner knows.

Exception: Strict Liability if animal trespasses on another’s land. Does not apply in some western states.

for the escape of something that he lawfully brings on his land that is harmless while it remains there, but will naturally cause damage if it escapes.

Defenses: plaintiff caused the escape or escape was due to an act of God (not recognized by Restatement anymore).

D will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained in the light of the character of that place and its surroundings.

Most jurisdictions impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. 

whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care?

when the high degree of risk associated with an activity cannot be eliminated by due care.

Strict liability is applicable only when the type of harm that happens is the type of harm that makes the activity abnormally dangerous in the first place. 

Contributory negligence does not bar recovery, but assumption of risk does.

1. Negligence

2. Breach of warranty

3. Strict product liability

4. Misrepresentation.

More modern way of classification is to look at more functional claim. Is it a manufacturing defect, design defect, or defect by reason of inadequate warnings or instructions.

If a product is reasonably expected to be dangerous if negligently made, and product will be used by persons other than purchaser, then duty of care exists and extends beyond original purchaser. 

Comparative negligence will only be an issue when the PLAINTIFF is negligent to a degree. In a comparative negligence analysis you are comparing the PLAINTIFF's amount of negligence to the defendant's negligence. Joint and several liability is an issue when there are multiple defendants who have been negligent (has nothing to do with the plaintiff's amount of negligence, but note that both concepts could possibly be in a problem if the plaintiff is negligent to a degree AND there are multiple defendants).