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TORTS Intentional Torts 1. General principle A. In deciding if P has satisfied an element, P hypersensitivity is ignored—always assume that P is a normal, reasonable person of std sensibility B. Every D, assuming they committed the tort, should be held liable for intentional torts regardless of incapacity—there are no incapacity defenses. (Ex: children can commit torts.) 2. List of testable intentional torts: A. Personal 1) Battery: A) Harmful or offensive contact committed by the D i) “offensiveness”-substitute idea of “unpermitted;” as perceived by an ordinary person B) Contact must be w/ or to or upon the P’s person C) Hypo: offensive batteries i) Social conventions, like tapping on the soldier, can’t be torts ii) Sexual harassment D) Hypo: contact w/: i) P’s “person” includes anything that P is holding, touching or is attached to, ie a suitcase in his hand. (Ex: slapping the horse = tort against the rider) ii) Contact need not involve the D’s person, or happen immediately a) Inflicting or causing harm b/t P’s person and something harmful ie poisoning 2) Assault A) D places P in a place of mental apprehension; it operates on the mind i) “Apprehension”—does not mean fear necessarily; can include knowledge of an upcoming touching or battery ii) Bar: big, strong P (clearly fearless) and D will be a little shrimp; D threatens a touching or battery against P—still an assault iii) What about the D who threatens a touching but cannot actually complete it, ie empty threats or bluffs? a) Still analyze it from P’s perspective. If P knows that the gun is unloaded, then P cannot recover b/c P’s mental tranquility is not disturbed. b) If P lacks info one way or another, and it’s plausible that there could be a battery, then P can recover c) If P doesn’t know that tort can’t be completed, P thinks threat is real—P can recover B) Mental process: knowledge of immediate battery i) Words alone lack immediacy; mere verbal threat w/o overt physical conduct is considered to be insufficient to make out tort of assault a) Ie words over the phone etc, not good enough ii) Even if you have overt conduct, words can negate immediacy a) Conditional or subjunctive words: “if you weren’t my best friend, I’d punch you in the nose.” That is not an assault b/c words reveal that D doesn’t plan to hit you. b) Words that promise action in the future by definition, kill the immediacy element C) False imprisonment i) D must engage in an act of restraint a) Threats are sufficient; a threat can be a form of restraint for the ordinary person. “If you leave this room in the next 30 mins, I’ll kill your child,” that’s an act of restraint. A reasonable person would remain in the room. b) An omission can be an act of restraint. A failure to act can be an act. There has to be a prior obligation to move around.; Air hostess doesn’t help a wheelchairbound get off the plane, having in advance had a duty to help the wheelchairbound get off the plane. If you abandon that physically challenged person, can be restraint.
Torts, In Class
c) P must know of the confinement or be harmed by it, in order for the confinement
to count; Have to know about it in order to have any legal interest harmed Result must be confinement of the P to a bounded area a) In order for an area to be bounded, P’s movement must be constrained all the way around b) Bar: roadblock question: if you can take a diff route to exit, then no tort c) An area is not bounded if there is a reasonable means of escape that the P can reasonably discover. If the way out is dangerous, disgusting, humiliating or impossible way to find, then it’s not a reasonable means of escape, so P will win. NB: causing someone to accidentally be confined might be negligence but it’s not an intentional tort
3) IIED A) Outrageous conduct i) Conduct that exceeds all bounds of decency tolerated in a civilized society ii) Mere insult absent a Plus Factor, not enough to be outrageous iii) “Outrageous” is case by case but there are Plus Factors: a) D’s conduct in question is continuous or repetitive (so repetitive threats can amount to IIED b/c turns into harassment) b) If D is a common carrier or innkeeper, D will be held to a std of “high courtesy” to customers. Thus anything deliberately designed is easily characterized as outrageous c) Outrageousness can include the targeting of a known phobia d) P is a member of a “fragile class of persons”— -1- young children -2- the elderly -3- pregnant women (D has to know that the female P is in fact pregnant) -4- racial epithets, ethnicity or sexual status B) Severe emotional harm to P i) Hypersensitivity is not taken into account ii) “Mildly annoyed,” negates “severe distress” 4) Trespass onto Land A) D must commit act of physical invasion i) Intentional: D got to the location by a volitional or voluntary act; D doesn’t need knowledge that he’s crossed a boundary line ii) Physical invasion 1: go onto the land on foot or by any vehicle or conveyance iii) Physical invasion 2: throw a tangible object onto the land a) Even if done w/o evil intent except but to make the object go there b) Item must be tangible; compelling intangible forces is not a physical invasion. (Ie sound or light projected onto someone else’s land, P can’t recover) B) Land i) P’s interest in property include the air above and the soil below, but only out to a reasonable distance (however far you can use the space in some concrete way) ii) Thus entry into soil or air can be a trespass 5) Trespass to Chattels and Conversion A) Both torts involve intentional interference w/chattel i) Chattel; personal property, anything and everything you own that is tangible and not real estate or buildings; includes currency or money) ii) “interference”-to damage, or deprive P of possession, ie theft iii) NB: these are the civil tort remedies for vandalism or theft B) Conversion: when degree of interference is extensive or significant C) Chattels: modest or slight degree of interference D) NB: why are there are two torts based on degree? To give the conversion P gets a special remedy—P gets the full value of the item, not merely the cost of rental or repair (Conversion is equivalent to a forced sale.) Trespass to Chattels will give the remedy of rental or repair. B. Affirmative Defenses 1) Consent
Torts, In Class
A) To all 7 intentional torts B) Only P w/ legal capacity can give legal consent. Only those w/ legal capacity can consent, but those w/o legal capacity can commit torts C) Express consent: words giving D consent i) Express consent is void if given out of fraud or duress ii) NB: Express consent to sex. Then 1 party gives an STD w/o disclosing. Even though there’s consent to sex, no consent to allowing the tort of STD-battery b/c failure to disclose = fraud. D) Implied consent i) Custom and usage: Routine invasions are customary, thus if P decides to engage in the activity or go to that place, then we assume that P is aware of the custom and has consented to the invasion a) What you consent to, when you play sports, is a consent to everything that is routine in the playing that game, regardless of whatever the rules of the sport are (so while fouls are illegal in bball, a foul that results in a battery isn’t a “battery”—you consent to that conduct). ii) D’s reasonable interpretation of D’s objective conduct a) D can interpret consent based on his reasonable interpretation of the objective circumstances b) P’s subjective thoughts are legally irrelevant E) All consent is confined by scope 2) Self defense, defense of others, and defense of property A) The “protective privileges” B) P must be responding to conduct that is in progress and imminent C) Revenge is not a defense D) Reasonable belief that threat is genuine E) Thus a reasonable mistake doesn’t defeat the availability of these defenses i) Shopkeeper’s privilege: he can use reasonable means to check a customer who may be a thief, ie if the security alarm sounds F) Force must be proportional to the tortuous conduct or invasion; going beyond that and using excessive force will hold you liable for tort. i) Deadly threat situation will justify deadly force ii) Deadly force is never ok to protect property; deadly traps to protect property is not ok 3) Necessity A) Only applies to trespass to land, chattels or conversion B) Public necessity: where a D interferes w/ P’s property in an emergency situation to protect community as a whole or a significant group of people; D is acting a good Samaritan C) Private necessity: a circumstance where D invades P’s property in an emergency to protect D’s interest; D is acting selfishly though not necessary unreasonable. i) Is only a limited or qualified defense ii) Legal consequences: a) Private necessity D must pay for actual harm damages (it’s like eminent domain) b) Private necessity D not liable for nominal or punitive damages c) Private necessity D is privileged to remain on P’s land in a position of safety as long as the emergency continues; private necessity D has a right of private sanctuary. P cannot eject, expel or scare off D from his land—D has the right to take sanctuary until the emergency has ended. Tort of Defamation A. Designed to redress injury to reputation B. Elements: 1) D must make a statement that is defamatory and specifically ID’s the P A) A statement is defamatory if it tends to injure the reputation of the P B) Mere insults are generally not defamatory b/c not considered to harm rep C) Need an allegation of fact by D that pertains to P that reflects negatively on a trait of character D) Traits normally can fall under defamation (for changing your perception of P’s rep) i) Honesty
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ii) Peacefulness iii) Loyalty iv) Sexual modesty E) Defamation has to be committed against a life person; can’t be committed against decedent 2) D must “publish” that statement A) Term of art B) “Reputation”—what other people think of you, thus it must be “public” C) “publish” is de minimus—D must reveal or share the statement w/ at least 1 person other than P; but the more widely the statement is disseminated, the more the P can recover D) “publication” need not be intentional; negligent publication is good enough 3) Damages—maybe (some P’s may have to prove damages, some do not) A) Damage rules differ based on diff subdivisions of defamation B) Subdivisions: i) Libel: any defamation that is recorded, written or embodied in a permanent format (handwritten letter or public and widespread format like newspaper). Includes tv/radio simultaneous broadcast. a) Don’t need to prove damages to get to the jury—damages is presumed b) You can still prove damages if you have evidence—more proof = more damages ii) Slander: spoken, formal or informal, private or public a) Slander-per se: slanders that are considered particularly devastating to the rep; is treated like libel; no need to prove damages. (Types of slander per se: #1, statement concerning business or profession, #2, x committed a crime of moral turpitude [ie, imputing unchastity to a woman, saying x molests his kid; is gender specific, doesn’t apply to men], #3, say x is suffering from a loathsome disease, ie leprosy, venereal disease b) Slander: have to prove economic damages; mental or emotional harms don’t count as damages C) Aff Defenses i) Consent ii) Truth: if D can prove that what he said is factually accurate, then he’ll win the case iii) Privilege a) Absolute: based on status or identity of the speaker/D; marital privilege—law doesn’t want to probe the confines of the relationship b/t spouses; govt agents while engaged in govt duties, most important to judicial branch, things written and said in open court are not the subject of defamation lawsuits b) Qualified privilege: arises b/c of the circumstances or occasion of the speech, not on the nature of the speaker. “Socially useful speech” or an occasion where there’s a public interest in encouraging candor. Ie, job letter of recommendation, statements made to investigating police. c) Qualified privilege D must: 1) be speaking in good faith but is inaccurate 2) D must confine himself to matters relevant to the purpose at hand st Defamation and the 1 A 1) Is the 1stA applicable? If the utterance is a matter of public concern, if it’s not, then no 1st A implications. 2) If it is a matter of public concern, then you have to use 1st A implications: A) Matters: military, govt corruption –makes 1st A concerns stronger B) Makes it harder for P to win, thus P has to prove additional elements: i) Defamatory statement ii) Published iii) Damages, maybe iv) + Falsity: the statement is false a) Eliminates truth as an affirmative defense; burden shifts to P to affirmatively prove that it’s false b) This proof shifting can be very difficult for the P v) +Fault
Torts, In Class
P has to show that D did not have a reasonable basis or good faith belief in accuracy b) Degree of fault depends on identity of P; if P is a public figure, then P’s fault showing must proof of intent or reckless falsehood (you said it and didn’t check on the accuracy or you said it knowing that it was false = constitutional malice). If P is a private figure, then fault can be satisfied by showing simple negligence (didn’t act reasonably to verify the statement D. Defamation and Privacy 1) Privacy torts: A) Appropriation: D uses P’s name, or likeness for a commercial purpose i) Newsworthy exception: journalistic exceptions that makes the use ok B) Intrusion: Invasion by D of P’s seclusion in a way that would be objectionable to the avg person i) Examples: wiretapping, secret taping, peeping tom ii) Exam: P must by definition be in a place where there’s a reasonable expectation of privacy to have a valid claim iii) Exam: intrusion tort doesn’t require a physical trespass in order to be accomplished C) False light: the widespread dissemination by D of a material falsehood about the P that would be objectionable to an avg person *** i) Falsehood can be defamatory or not ii) But defamation damages are diff—defamation lets you recover for economic harms iii) False light lets you recover for emotional and social harms iv) It’s an effort to protect against gossip D) Disclosure: widespread disclosure of confidential info about P that would be objectionable to an average person i) Newsworthy exception, ie publishing confidential info about public figures is ok ii) No cause of action if underlying fact isn’t confidential 2) Affirmative Defenses A) Consent B) The absolute and qualified privileges for defamation apply to false light and disclosure claims. E. Economic torts: fraud, intentional inducement to breach K F. Abuse of judicial process, malicious prosecution Negligence A. Elements 1) Duty 2) Breach 3) Causation 4) Damages B. Duty 1) Two issues: A) To whom you owe a duty of care i. To foreseeable victims; foreseeable victims are w/in the “zone of danger” ii. Don’t owe to unforeseeable victims; unforeseeable victim will always lose on the bar exam iii. Exceptions to the Palsgrafrule: rescuers are not barred by the fact they are outside of the zone of danger. If rescuer is hurt during his rescuing, he will have a claim even though he began the fact patter well away from the zone of danger. B) How much care do we owe? Reasonably prudent person acting under similar circumstances i. How is this tested? Test that the reasonably person is an objective std of care. Don’t make any allowances of the individual attributes of the D. ii. Exceptions to the strict objectivity of this rule: a. Superior knowledge: having superior knowledge about the events in question, the std is the reasonable person w/ that superior knowledge b. Physical characteristics: the reasonable person is always the person w/ the same physical attributes as the D in the case
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C. Special duty rules: 1) Rule: children under the age of 4 are legally incapable of owing any duty of car 2) Rule: 5-18-year olds owes the care of a hypothetical child of similar age, experience and intelligence, acting under similar circumstances. A child is only held to the std of his age group, experience and intelligence levels. A) This is very diff from the std reasonable person, which is an objective std B) Child std is extremely subjective, is customized to the attributes of the child; very flexible and kind of prof-D. C) Exception: if a child is engaged in an ‘adult activity,’ don’t use the special test, use the reasonably prudent person instead. (‘adult activity’-operating a vehicle w/ a motorized engine.) 3) Rule: for professionals w/ regard to their services: owes a patient or client owes a care of the avg member of that profession who practices in a similar community A) Bar tends to focus on health care providers; bring in experts to compare. B) The std is empirical: similarly situated colleague C) “Customary practice” isthe custom. (In other cases, it’s some evidence but not the std.) D) “Similar community”-compare big city to big city and small town to small town 4) Rule: duty owed by land possessors to persons who come on the land (any form of real estate + structures) A) Renters (not just owners) can be possessors B) Issue 1: How did P/entrant get hurt? i. By an activity being conducted by the possessor or one of his agents on the land ii. By encountering a dangerous condition on the land C) Issue 2: What kind of entrant? i. Undiscovered trespassers: are owed no duty of care regardless of whether they are hurt by an activity or a condition; always loses in an action against the land possessor ii. Discovered trespassers: possessor is aware of or expects trespasser (constructive knowledge imputation if you should expect or anticipate trespassers, usually occurring after there’s been a pattern of trespassing in the past.) a. Activities: std reasonable duty of care b. Condition: duty owed only when that condition meets the following: 1) artificial (created by people) condition; 2) condition must be highly dangerous (kill or severely injure); 3) condition must be concealed from P/entrant at moment of injury; 4) possessor had advanced knowledge of the condition i) No duty for natural hazards on land ii) No duty for slightly dangerous conditions on the land iii) No duty to protect for open or obvious hazards iv) Summary: only owed a duty if that entrant was injured by a known, man-made deathtrap. 5) Rule: Licensees: enter land w/ permission but not to confer any economic benefit to the possessor; are usually social guests; owe reasonably prudent care A) Activities: ordinary care B) Conditions: duty is owed if: i. Condition was concealed from the licensee ii. But was known in advance by possessor iii. Summary: protect licensees against all known (not just man-made) deathtraps 6) Rule: invitees: enter land to either confer econ benefit on possessor or the land is open to the public at large; is usually a customer; duty for activities is std. A) Conditions: must be concealed AND possessor either knew of advance or could’ve discovered through a reasonable inspection B) Summary: must protect against all reasonably knowable and known traps 7) Footnotes: A) Firemen/police: can never recover for an injury that is an inherent risk of his job
Torts, In Class
B) Child trespassers: are always given a std of protection of the reasonably prudent person when injured by artificial conditions on land. i. The more likely that child trespassing will happen, the greater the duty of the possessor to protect child trespassers against artificial conditions. ii. Having something particularly appealing to children on land creates duty to protect children b/c they are likely to come onto the land. C) If a possessor of land owes a duty to protect any kind of entrant from a dangerous condition, the possessor can satisfy his duty by either : i. Fix the prob ii. To give a warning 8) Rule: Statutory Claims A) Will speak to the behavior that caused the prob but statute doesn’t provide for tort damages, ie it’s a crim statute instead. B) When can you treat a statutory violence as negligence, per se? P must show: A) He is in the class of persons that the statute seeks to protect, and i. Accident or injury is w/in the class of risk that the statute was trying to prevent ii. Summary: class of person-class of risk test iii. If you can’t use the statute, then use the reasonable person std C) Exceptions to when the class of persons-class of risks stds is met: i. If compliance would be more dangerous than violation, then don’t borrow the statute ii. If compliance was impossible under the circumstances, don’t borrow the statute 9) Rule: Duties to act affirmatively A) Rule: no duties to act affirmatively—no duty to rescue strangers B) Bar: appeal to emotion C) Exceptions: 1) If parties have a pre-existing relationship, then there is a duty to rescue (brother-sister, innkeeper-guest, land possessor-invitees, all trigger duty to rescue; increasingly, cts recognizing informal relps as well, friend-friend etc.) 2) If D put the P in peril, or D caused the peril, then there’s a duty to rescue 3) Std: to rescue reasonable under the circumstances, ie never an obligation to put own life in jeopardy D) If no duty to rescue, then gratuitous rescuer must act reasonable; can’t place victim in worseoff position i. NB: many statutes have altered this rule w/ Good Samaritan statutes 10) Rule: IIED, but no physical injury. A) Near Miss Claim (Fright) i. You were in a zone of physical danger by virtue of D’s negligent act; it’s got to be a near-miss fact pattern or close call ii. Subsequent physical manifestations; come after the event; include heart attacks, miscarriage, hives; it’s a std to protect against fraud by the P B) Bystander Claim (Grief or Despair)—D injures A, but in addition, B is grief-stricken. B can recover if: i. Proximity along 3 dimensions: time, space and relationship D. Breach 1) P must ID the specific wrongful behavior that D engaged in and why the behavior is wrongful. (Ex: P alleged that D was unreasonable b/c D looked away from the road. This is unreasonable b/c reasonable people keep their watch on the road.) 2) Res ipsa loquitor: where P cannot ID any wrongful conduct (b/c doesn’t know enough about what happened): A) Accident is of the kind normally associated w/ negligence (as a matter of probabilities; ordinarily when the barrel falls out of the window, it’s normally the product of negligence—is usually an appeal to the jury’s common sense.) B) Also have to show that an accident of this type is due to the negligence of someone in D’s position (still probabilities, not certainties) by generally showing that D had control of the object. E. Causation
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1) #1: Factual Causation: where P establishes linkage b/t D’s breach and his ultimate injury; focus is on breach. A) “But for” the breach, P would’ve escaped harm. “Even if” is D’s rebuttal to but-for causation. B) Merged Causes: ie, single combined fire that started from two separate fires. Test: “substantial factor test” instead of the but-for test. Was each breach capable of causing the injury by itself? If so, then that D is a substantial factor and should be held liable. If both breaches are substantial factors, hold jointly liable. 2) #2: Proximate or Legal Cause: P has to prove that liability would be “fair” under these circumstances A) It’s “fair” to make people pay for the forseeability of their consequences 3) Indirect cause cases 4) Well settled: A) Intervening medical negligence B) Intervening negligent rescue C) Subsequent disease or accident D) ?? F. Damages 1) Eggshell Plaintiff: once P shows every other element of the case, P is entitled to discovery all damages suffered even if surprisingly great in scope. A) You take your P as you find your P. G. Affirmative Defenses to Negligence 1) Contributory Negligence A) Only in 5 holdout jurisdictions B) If P is guilty of any fault, P cannot recover 2) Assumption of the risk A) Only 12 jurisdictions keep 3) Comparative Negligence A) D will contend that P was careless for his own safety, but it doesn’t bar P’s recovery, it just reduces the amount of recovery B) Jury will assign the two parties a percentage that reflects their degree of fault. No real guidelines that govern the assignment of percentages. Then P’s recover is reduced by the amount of fault attributable to the P. C) Pure comparative: go strictly by the numbers. Thus P always at least a little something. D) Modified comparative rule: A P that has more than 50% to blame will recover nothing. But P that has less than 50% contribution, will recover something. E) NB: a rescuer who exposes himself to some risk can claim as against the D who caused the prob and D cannot use the rescuer’s bravery as a species of fault Strict Liability A. Injuries by animals 1) Injuries caused by domesticated animals: mostly dog-bite cases; you’re not S/L for dog-bites A) Exception: if you keep a domestic animal and you have knowledge of its vicious propensities, then S/L is imposed and you’ll be liable regardless of your knowledge or precautions B) You know if the dog has “vicious propensities” after the first bite. 2) Trespassing cattle A) There is S/L for trespassing cattle 3) Wild animal: S/L from the get-go B. Abnormally dangerous activities 1) S/L if someone gets hurt by the kind of accident that causes us to name it as abnormally dangerous in the first place 2) Test: A) Activity must be one that poses a risk of serious harm even when reasonable care is being exercised B) Activity is not a matter of common usage in the community C) Example: blasting or use of explosives 3) In S/L regime, safety precautions are irrelevant C. Defective products 1) Can be consumer products or industrial products
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2) When someone is injured by a product, they are likely to have several C/A. 3) Elements of product s/l liability: A) D was a merchant i. Merchant: routinely deals w/ products of this type, not just someone who is in business ii. Bar: a. Casual sellers: opposite of merchants; can’t be held S/L b. Service providers: make products available incidental to the service, but aren’t merchants of the product, so can’t be held S/L c. Commercial lessors: are merchants even though they don’t transfer titles; ie rental car company d. Every merchant in the chain of distribution can be S/L; not limited to whomever P dealt w/ immediately. There is no privity requirement in S/L cases. B) P has to show that the product has a defective. 1) Types: a. Manufacturing defect: if it departs from its intended design in a way that makes it more dangerous than consumers would expect; if it’s an anomaly or irregular product b. Design defect: if there’s another way that it could’ve way it could’ve been built; alternative design must be: i. Safer than existing design ii. Economical or cost-effective; it has to be about the same price as the original design iii. Practical: product must function and not introduce new safety or handling issues than original c. Information Defect: product can have a design defect if it has residual risk that consumers wouldn’t be aware of AND it lacks warnings about those risks i. Warnings have to be clear, understandable and in a reasonable location whereby consumer will read it. ii. But if there’s a physical redesign that is safer, economical, and practical, then slapping a warning on it won’t be good enough. C) P has to show that product hasn’t been altered: 1) If product has travelled in ordinary channels of distribution, there’s a presumption that product hasn’t been altered. 2) But if product was bought at a non-ordinary channel of distro, then P has to prove. 3) So if D can prove non-ordinariness, then might absolve of liability. D) P must be making a foreseeable use of the product. 1) A foreseeable use doesn’t necessarily mean the intended use. Many misuses are nonetheless foreseeable. (Ie, standing on a chair is foreseeable even though intended use is sitting.) D. Affirmative defenses for all 3 types of S/L 1) Comparative fault: any P carelessness, foolishness etc. can result in a percentage assignment of fault and a reduction in damages recovery Nuisance A. Nuisance: it’s a type of harm; refers strictly real estate. You suffer a nuisance when someone else interferes w/ your ability to enjoy your property and that degree of interference is unreasonable B. Q: balancing the equities: allow D to use his property but guarantee that P won’t be unduly interfered w/ Misc A. Vicarious liability 1) Liability imposed on someone for a tort committed by someone else 2) Active tortfeasor, liable for his own conduct + passive party who can be held vicariously liable 3) Why hold? Based on relationships. 4) Bar relps looked at: a. Employer-employee, tort committed w/in scope of employment i. Usually intentional torts are committed outside scope of employment ii. Exceptions: iii. Employment itself involves the use of force, ie security guards
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iv. Job generates friction, tension, ie repo man v. Misguided effort to serve employer’s interests, b. Hiring parties – independent contractors, i. Hiring party is not vicariously liable to independent contractor ii. Exceptions: a possessor of land is vicariously liable if an independent contractor hurts an invitee; “non-delegable duty”—care that land possessor owes to invitee can’t be farmed out to contractor c. Owner of a car – driver of a car i. Owner not V/L of driver’s torts ii. Exception: if you are driving the car as an agent of the owner of a car (ie if you’re doing an errand for the owner of the car, there’s agency relp which triggers V/L) d. Parents – kids i. Parents are not V/L for torts of their kids. ii. But, before you get to V/L, you must ask whether or not the person being tagged for liability can be hit directly w/ liability for his own conduct. iii. Negligent entrustment, failure to investigate etc. come before V/L B. Joint Tortfeasors 1) Out-of-pocket D’s who want to go after other D’s. Jury will assign all the D’s percentages and the out-of-pocket payor can get back whatever jury assigned. 2) Exception: Indemnification: to be made fully whole: a. If out of pocket payor was V/L, then he can get full indemnification from active tortfeasor b. A non-mfr (typically the retailer) held S/L for product defect can get indemnification from the mfr C. Loss of consortium 1) Whenever victim of a tort is a married person, the law gives the unmarried, healthy spouse a second and separate C/A 2) Allows for recovery of: a. Loss of services, loss of household services b. Loss of society or loss of companionship c. Loss of sex
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