Author: Anonymous
School: UC Davis School of Law
Professor: Professor Johns, Spring 2003
Text: Prosser, Wade, Schwartz, Kelly
 

I.                   NEGLIGENCE

A.     DUTY (Usually a Learned Hand analysis)

1.      Failure to act

a.      General Rule: No duty to act/aid another

b.      Exceptions:

(1)   Statutory Duty

(a)    e.g. Child molester’s wife liable b/c statute imposed additional duties

(2)   Special Relationship

(a)    Usually present when the person injured is vulnerable (e.g. minors, prisoners, guests at inns, etc).

(b)   Special relationship b/t Δ and victim:

i)                    Hegel v. Langsam: Parents of minor sue university for allowing their daughter to use drugs and associate w/ criminals.  Held: No affirmative duty to regulate the private lives of their students.  No special relationship b/t daughter was not required to be there. 

ii)                   Ayres & Co. v. Hicks: Escalator case.  Special relationship also present here (invitee/invitor). 

(c)    Special relationship b/t Δ and tortfeasor/3d party:

i.)                  JS and MS v. RTH: Parents of 2 girls who were sexually abused brought suit against the wife of the molester on the theory that she owed a duty of care to the girls and their parents.  Held: Wife’s negligence did render her liable for girls’ injuries.  Wife was found to have actual knowledge or special reason to know of spouse’s activities, and thus, had a duty of care to take rsbl steps to prevent the harm (Evid was based upon her concessions made @ pre-trial). 

A.     Also contributing here was statutory provisions (i.e. Megan’s law) that demonstrated public policy against sexual abuse.

ii.)                 Tarasoff v. UC Regents: Psychologists from UC were aware that one of their outpatients intended to kill Tarasoff but neglicted to warn her of it.  Held: Therapist has a duty to warn potential victim if it is reasonable to believe that victim may be at risk of harm. 

A.     Duty to victim arose out of special relationship b/t therapist and patient. 

B.     CA: Statute imposed to keep this case confined to its facts

1.      Must have serious threat of physical violence

2.      Victim must be reasonably identifiable

3.      Duty to warn and protect victim; therapist must make “reasonable efforts.”

iii.)               Riss v. NY: Despite repeated pleas to the police for protection, Riss was assaulted by a criminal who had openly threatened her for years.

A.     Law enforcement does not have a special liability and responsibility to individuals.  W/o a specific legislative mandate, govt is not liable for negligent failure of police to protect citizens from crimes.  Want to control the “floodgates.”

B.     Police have discretion on how to allocate their resources…Judicial restraint. 

iv.)               DeLong v. Erie: π called 911 to report a burglar, and the operator mistakenly recorded the address and police dismissed the call as fake.  Held: Police liable b/c breached a duty to provide reasonable protection; π relied (to her detriment) on operator’s assurance that police would come. 

(3)   Voluntary Undertaking: If rescue is affirmatively undertaken, then there is a C/L duty not to quit.

(a)    Rationale: Will discourage others from rescue.  Also based upon victim’s reliance on rescuer to complete the rescue.

(b)   Exception: Good samaritan statutes protect incidental negligence of rescuers.

(c)    DeLong v. Erie: If 911 assures victim that they will come, they have a duty to reasonably carry through.  “We’re coming” induced the victim to rely on the police. 

i.)                  Other case: No liability when 911 operator took info, but didn’t say that they were coming.

ii.)                 Other case: No liability when 3d party called 911 on behalf of victim of sexual assault b/c victim didn’t know that 911 was called and had no reason to rely.

(4)   Δ or Δ’s instrumentality caused injury

(a)    Ayres & Co v. Hicks: 6 year old’s fingers were caught in Δ’s escalator when shopping with his mom.  Dept. store unreasonably delayed in stopping the escalator.  Held: Dept store not liable for initial injury, but is liable for aggravation of injury.  Δ is responsible for their instrumentality. 

i.)                  This holding: Invitors liable to invitees for failing to control their instrumentality. 

2.      Landowner Liability: Owners and Occupiers of Land

a.       Historic C/L: No liability for things occurring on your land

(1)   Exceptions/ Factors for ct to extend liability. 

(a)    Active misconduct or passive misconduct?

(b)   Conduct on or off the premises?

(c)    Nature of the risk

(d)   Natural v. artificial condition?

(e)    Urban v. rural land?

(f)     Latent v. patent risk?

b.      If active risk creation, C/L more likely to impose liability (e.g. artificial, patent, urban conditions + active misconduct)

(1)   e.g. Baseball: Created the risk by doing something artificial on land, then have a duty of care. 

c.       Taylor v. Olson: π injured when she crashed into a tree which had fallen onto a highway from O’s property.  Held: O liable if knew/should have known of dangerous condition.  O had the duty of reasonable inspection.  Here: no evidence that Δ should have known of the tree’s condition, so Δ not liable.  Jury could find rsbl std of care used. 

d.      Evolution from old rule: No liability if a natural cause. 

e.       Consider status of π to determine duty of Δ

A.     Modern approach: Occupier of land owes a duty of care.  Rejects/merges categories. 

1.      ***Rowland v. Christian: (CA Supreme Ct) π was licensee/social guest at Δ’s place.  Δ knew of broken faucet, but failed to warn π on condition.  Held: π’s status is indeterminate.  Use a traditional negligence standard.

a.       Factors of rsbl care (like Justice Andrew’s px cause hints):

(1)   Foreseeability of harm to the π

(2)   Closeness of connection b/t possessor’s conduct and injury

(3)   Moral blame attached to possessor’s conduct

(4)   Policy of preventing future harm

(5)   Extent of burden to possessor

(6)   Consequences to community of imposing a duty of care

(7)   Availability/prevalence of insurance

b.      Duty of care will be left to the jury to decide what’s reasonable under the circumstances.  →RPP std

(1)   Thus, likely that a duty of care to a trespasser and licensee will differ. 

(2)   CA: No liability to trespassers when on the property for serious wrongdoing purposes. 

c.       Some jx retain the categories approach

B.     Landlord Liability

1.      LL’s are NOT liable to tenants or their guests for defective conditions—Rest. & Majority

a.       EXCEPTIONS:

(1)   Undisclosed dangerous condition known to the lessor

(2)   Conditions dangerous to those outside the premises

(3)   Premises leased for admission of the public

(4)   Parts of land in lessor’s control which the lessee is allowed to use

(5)   Lessor Ks to repair damages

(6)   Negligence by lessor in making repairs

b.      Borders v. Roseberry: π was a social guest on land where Δ was LL.  B fell on front steps and was injured.  Δ had promised to repair the faulty roof which caused the condition, but had not done any work yet.  Held: ΔLL is liable b/c it falls w/in the exceptions.

2.      CA: Uses the reasonably prudent person approach—Minority

a.       Evolution of the law to std of rsbl care when cases don’t fit into categories

b.      Paglesdorf v. Safeco Ins: P assisting a friend, a tenant in Δ’s building, in moving some furniture.  P injured when he leaned on a balcony railing and it collapsed.  Railing had dry rot and should have been replaced.  Held: LL liable although he had no knowledge and did not fall w/in the exception.

(1)   Ct. rules that LL must exercise ordinary care toward his tenants and their guests—rejects categorical approach. 

(2)   Based on policy: Leases no longer treated as conveyances (as in feudal England).  Instead, LL has an obligation to keep the land in repair under the terms of the lease.  Will determine liability by looking @ what’s reasonable under the circumstances. 

c.       Klein v. 1500 Mass. Ave Apts: π, a lessee of Δ, seriously injured when criminally assaulted/robbed in common hallway of bldg.  No doorman present, although there had been in the past & other tenants recently assaulted in the common areas.  Held: LL breached duty of rsbl care to protect π from 3d party criminal acts that are foreseeable. 

(1)   General Rule: No duty to guard against 3d party criminal conduct

(2)   Rule not applicable here b/c

(a)    LL-tenant relationship (i.e. special relationship)

(b)   Incident occurred in common area.  LL had authority and control to take precautions in these areas.

(c)    LL had notice of risk

(3)   Trend: Impose liability when LL on real notice.

(a)    LL responsible to take rsbl precautions for foreseeable crimes

(b)   CA: Requires a prior act on the premises

B.     Breach

C.     Actual Cause

D.    PROXIMATE CAUSE (i.e. Limitations on Damages)

1.      Historic C/L: Need privity of K to show recovery

a.       Nonfeasance: Δ didn’t perform K

(1)   K c/a

b.      Misfeasance: K performed negligently

(2)   Tort or K c/a

c.       Winterbottom v. Wright: π injured by a defective mail coach that had been fixed by the Δ.  Held: Δ not liable b/c no privity of K b/t the parties.  Even though π was a foreseeable π, no recovery.

2.      Now: Standard is foreseeability

a.       MacPherson v. Buick: π sued Buick for injuries sustained when a defective wheel in his recently purchased car collapsed.  Held: Buick is liable, even if there was no privity of K b/t π and Buick (b/c car was bought from a dealer).  Std is now FORESEEABILITY.  (i.e. a mfr of final product breaches a duty of care to a foreseeable user of its product if the product was likely to cause an injury if negligently made and placed into the mkt w/o reasonable inspection.)

(1)   Rationale: Mfr knows its products will go into the stream of commerce, and ensures the safety of the product.  If mfr not liable, difficult for π to recover. 

b.      Limits (when foreseeability is too broad):

(1)   Public Utilities

(a)    HR Moch v. Rensselaer Water Co: M’s building caught fire, and he sued the water company who had contracted w/ the city to provide water in the fire hydrants.  Held: Water co not liable to consumer whose house burns when water service fails.  K only protects city—not all citizens. 

(i)                  Rationale: Although foreseeable πs are barred from recovering, wish to keep cost of public utilities down for everyone.  Want people to get homeowners’ insurance policy rather than burdening the public utilities. 

(2)   Privity of K still required for most professional services

(a)    Clagett v. Dacy: Auction where atty’s messed up the procedure so that their clients (the debtors) could keep their ppty.  Bidders sue the attys.  Held: Atty has no duty to 3d parties outside the atty-client relationship.  Atty’s only duty is to their client.

i.)                  Rationale: Protect atty’s expectation of the atty-client relationship.  No extension of liability when only economic harm done.

3.      NO recovery for economic loss unaccompanied by physical damage to a proprietary interest.

a.       State of LA Ex rel. Guste v. MV Testbank: 2 vessels collided in Miss. River which resulted in massive PCP spill where the outlet had to closed.  Fishing suspended, and businesses suffered loss from halt in fishing, etc.  Held: No recovery of economic losses caused by shipping accident w/o physical damage to their property—although perhaps injury was foreseeable.

(1)   Underlying holding: insurance.  Premiums too high if Δ expected to account for potential 3d party economic harm for Δ’s negligence.  Want to avoid burdening industry by catastrophic loss.  Want to encourage each business to obtain their own insurance—each pays their own premium and spread the risk.

(2)   BLR for administrative convenience

(3)   Does NOT apply to intentional torts

4.      Negligent Infliction of Emotional Distress:

a.       Historically, emotional injuries not recognized.  But exceptions created

b.      Now: Recovery allowed for negligent infliction of emotional distress, but with limits

(1)   Impact Rule: In order to recover damages for neg infliction of emotional distress, an external IMPACT is required (i.e. does not need to be injurious, but need physical contact)—some jx

(a)    Rationale: BLR to cut off liability

(b)   Criticism: Allowed recovery in trivial injuries if impact, but ignores real & serious injuries if no impact.  Against policy to avoid litigating trivial injuries.

(2)   Physical Consequences Rule: (replaces impact rule) π can recover as long as there are provable physical consequences + reaction is normal, not hypersensitive—majority rule & Restatement

(a)    Rationale: Better objective std

i.)                  Does NOT apply to the hyper-sensitive π—exception to the eggshell skull rule

(b)   Daley v. LaCroix: Daleys suffered emotional distress after Δ’s car crashed into their house.  Held: Mother and son CAN RECOVER for physical consequences of Δ’s actions.  Emotional distress caused physical consequences (i.e. accident →emotional distress →physical consequences).  Ct rejects impact rule.

(3)   Zone of Danger Rule: π can recover if in the zone of danger.  Bystanders outside the zone usually cannot recover. 

(4)   CA Rule: 2 types of cases

BYSTANDER RULE:

(a)    Thing v. LaChusa: Mother sought emotional distress damages for seeing her son in an injured state, although she did not contemporaneously observe the accident.  Held: No recovery.  Mother did not observe the injury-producing event. 

(b)   Thing’s dicta solidified the guidelines for recovery in CA for negligent infliction of emotional distress (4-points):

1)      PHYSICAL PROXIMITY- π must be near the scene

2)      π must have a PERSONAL SENSORY OBSERVATION of the injury-producing event & be aware of the injury to victim.

3)      Need a CLOSE FAMILY RELATIONSHIP with the injured party.  (Ct. looks @ legally recognized relationships, not subjective closeness)

4)      π must suffer serious emotional distress BEYOND A DISINTERESTED WITNESS and not an abnormal response to the circumstances.

(c)    Rationale: Floodgates issue.  Will also avoid requirement of impact. 

DIRECT VICTIM CASES:

(a)    CA: Recovery allowed b/c real emotional distress suffered

(b)   Limited to cases where spouse erroneously diagnosed as having an STD; Expanded to marital counseling cases where counselor has an affair w/ patient…may be expanded to cases where special relationship present.

(c)    NOT universally adopted in other states

5. Prenatal Injuries

a.       Prenatal Personal Injury: Baby born w/ disability caused by prenatal injury.  Baby can recover for personal injury (general & specials)—NOT CONTROVERSIAL

(1)   Includes a child suing its mother for a negligent accident while she is pregnant—child is actually after insurance $$ of mother’s carrier

b.      Prenatal Wrongful Death: Parents’ right to recover damages for the death of an unborn child (CONTROVERSIAL)

(1)   Split in jx—Depends on statute

(a)   CA: No wrongful death c/a for an unborn child.  Ct. will not expand the statutory definition of “life.”

(2)   Endresz v. Friedberg: π injured in auto accident and delivered stillborn twins 2 days later.  Parents brought wrongful death suit for each child.  Held: Wrongful death cannot be maintained for the death of an unborn child.  Birth = BLR—arbitrary, but definite/workable.  Unborn fetus doesn’t have a “separate existence” in the eyes of the law; person must be alive for wrongful death recovery. 

(a)    Policy: Parents can recover own damages that will be sufficient.  Child’s damages too speculative, and do not wish to punish for negligence cases. 

(b)   Also based upon statute that said no decedents until actually born. 

c.       Wrongful birth: Parents’ right to recover damages for the birth of a child—i.e. child is disabled b/c of Δ’s negligence (CONTROVERSIAL)

(1)   Damages = cost of raising the child

(2)   Healthy Child—Split in jx: Some states allow no recovery; some allow recovery for birth and costs of raising a child minus benefits of having the child; some have other measures of damages

(a)    e.g. families that already have 10 kids and simply can’t afford another.  botched sterilization procedure, and they have another kid—want Δ to help pay.

(3)   Disabled Child—Split in jx: Some states allow extra expenses for raising child; some allow emotional damages; some allow both expenses and damages for emotional distress; some deny all recovery. 

(a)    Trend: Allow special damages (i.e. extraordinary expenses).  Problem is that disabled children are simply expensive to care for. 

(b)   CA: Can recover the cost of rearing the child – benefit of the child.  No generals awarded

d.      Wrongful life: Child’s right to recover damages for being born (VERY CONTROVERSIAL)

(1)   Procanik v. Cillo:  Infant (π) alleges drs. negligently failed to diagnose his mother w/ German measles while pregnant.  As a result, π born w/ congenial rubella syndrome.  π alleging drs deprived parents of choice of terminating pregnancy.  Held: No recovery for wrongful life general damages, but can recover special damages for extraordinary medical expenses.

(a)    Rationale: Specials are measurable.  Generals are unquantifiable + ct has problem w/ comparing an impaired life w/ no life at all. 

(2)   Healthy child: If child is healthy, no recovery in those jx. 

(3)   Disabled child—Split in jx: Some states allow additional expenses beyond normal person’s life; some allow pain and suffering; some allow both; some deny all recovery.

(a)    CA: Special damages allowed, but can’t sue own parents

(b)   Problem: when the child reaches majority, who will care for it?

E.     DAMAGES

1.      Nominal Damages: $1

a. NOT for negligence, products liability c/a

2.      Compensatory

a.       Rationale: To compensate injured π

(1)   Should not be a windfall to π

(2)   Should not sending a message to Δ or saying Δ is morally reprehensible

b.      General (non-economic)

(1)   Past pain and suffering

(2)   Future pain and suffering

(3)   Disability and disfigurement

(4)   MICRA: $250,000 cap on generals (CA)

c.       Specific (economic)—quantified by expert testimony

(1)   Future Medical (reimburse out-of-pocket costs)

(2)   Future Wages (loss of earning capacity)

(3)   Harm to property

(a)    Market value of property…BUT difficult to ascertain b/c may not always be related to damage caused (e.g. wine crusher @ time of peak harvest)

(4)   NB: π will receive all damages in a lump sum.  Issue is how to account for time-value of $$--inflation v. interest. 

d.      Maximum Recovery Rule: Ct establishes a maximum amount that a jury may award; Ct establishes what is w/in realm of “reasonable”

(1)   Anderson v. Sears Roebuck and Co: π, a child, severely burned when negligently manufactured heater set fire to house.  Jury awarded $2,000,000 in compensatory damages.  Held: Amount under the maximum recovery set by ct.

(2)   Richardson v. Chapman: π rear-ended by Δ driving a trailer during employment.  Re: future medical cost, π awarded $1.5 million more by jury than established by expert testimony.  Held: Ct of Appeals mitigated damages by $500,000 to allow jury leeway, but stick close to trial testimony. 

e.       Collateral Source Rule: Δ cannot use evidence of expenses already paid by 3^rd parties (e.g. insurance or gifts) to mitigate damages

(1)   Rationale: Don’t want to reward the Δ for benefits π secured/entitled to (i.e. their insurance $$ since they’ve paid the premiums). 

(a)    Reality: π rarely recovers more than out-of-pocket expenses.  π’s “windfall” usually goes to atty fees.  Most insurance have clauses that prevent π from double recovery.

(b)   π’s atty usually will negotiate medical costs w/ health care.  Thus, atty is actually working for both hospital and client.  Client is entitled to bill the “sticker price” in damages.

(2)   Restatement: Δ should pay full amount of damages

(3)   Montgomery Ward v. Anderson: π fell while shopping @ Montgomery Ward.  Δ moved to present total amount of bill as proof of medical expenses b/c π had gotten discount from the hospital.  Held: Δ cannot produce such evidence.

f.        Avoidable Consequences Rule: π cannot recover for damages that are reasonably avoidable.  Δ entitled to evidence/jury instructions that π could’ve alleviated cost by undergoing treatment. 

(1)   Zimmerman v. Ausland: π had knee injury from car accident.  Jury awarded $7500 for permanent injury.  Δ argued that π could’ve had surgery to mitigate the damages.  Held: Δ failed to prove that reasonable minds would not differ that π should’ve had the surgery. 

(a)    Δ’s burden of proof to show that as matter of law, all reasonable person would have had the operation.

(2)   Rationale: If π acted unreasonably, Δ shouldn’t pay.  π would never totally not recover; this rule just mitigates damages. 

(3)   Criticism: Patient autonomy and Eggshell skull π: Δ should pay for all damages to π as they come.

g.       Judicial Review

(1)   General rule: Defer to the jury’s discretion

(a)    Remittur: If trial judge thinks damages too excessive, can suggest new amount, and if π agrees, no trial

(b)   Additur: If trial judge thinks damages too low, no new trial if Δ pays higher amount. 

3.      Punitive/Exemplary

a.       Rationale: Punish and deter

b.      Criticism: Burdens industry/economy; Too much windfall for π; Purpose served?

c.       Considerations for recovery:

(1)   More than mere negligence req’d; Must have intentional or reckless disregard for others

(a)    Can have negligent conduct that is also intentional (e.g. a drunk driver who negligently hits a pedestrian)

(2)   Must be rsbl relationship b/t harm suffered and damages awarded

(3)   May consider evidence of Δ’s financial situation

(a)    Want to avoid Pareto effect where Δ can figure out that it’s cheaper to settle lawsuits than fix problem—particularly if public is at risk of harm.  (e.g. Ford/Pinto cases)

(4)   Risk to be avoided v. burden to avoid risk

d.      CA Punitives: π must prove (by clear and convincing evidence):

(1)   Malice: Conduct intended to cause injury to π, OR

(2)   Oppression: Dispicable conduct which subjects a person to crual and unjust hardship in conscious disregard of that person’s rights.  Dispicable conduct is so vile, base, contemptible, wreched or loathsome that it would be looked down up and despised by ordinary decent people, OR

(3)   Fraud: An intentional misrepresentation with intention of depriving personal or property rights.

(4)   PLUS: Punitive damages must have a reasonable relationship to the actual relationship

(5)   NOW: Appellate courts required to conduct a “thorough and independent scrutiny” of punitive damages—rather than deferring to the jury.

e.       Gryc v. Dayton Hudson: Flammable pajamas severely injured 4-year-old.  Jury awarded $1M in punitive damages.  Held: Affirmed.  Evidence shows Δ created substantial danger to public by marketing and selling highly flammable pajamas—Although legally sold (i.e. federal regulations), was not reasonably safe.  Will not cause economic hardship to industry.  Δ had been subject to lawsuits before, and had not changed material. 

f.        BMV v. Gore: π awarded $2M punitive damages for buying a car that had been repainted to cover up acid rain damage—mfr had not disclosed this info and sold car as new.  π suffered $3400 in loss in value of car + $600 for new paint job.  Held: Punitive damages so excessive that it violates Due Process.  Also, cannot enact extra-territorial punishment in a state court. 

(1)   3 factor test:

(a)    Degree of reprehensibility (here: no bad faith, endangering lives of others)

(b)   Relationship b/t harm and damages (here: 500 to 1)

(c)    Penal Sanctions for comparable conduct (here: Alabama state law sanctions behavior $2000). 

(2)   Price v. Hartford: π hits another driver in drag race.  Insurance co refuses to pay out punitive damages, although the policy covered them.  Held: Ins. co must pay, and cannot void document for reasons of public policy (i.e. people getting what they’ve paid for). 

(a)    CA: Cannot insure intentional torts, and thus, cannot get insurance for punitive damages

4.      Wrongful Death: Recovery for death of decedent’s statutorily defined heirs

a.       Statutory: At C/L, no recovery for wrongful death.

(1)   CA: Will always defer to the statute.  Ct refuses to expand statute (e.g. stepchildren, domestic partners, etc.) if legislature doesn’t speak.

b.      Begins @ point of death

c.       Loss of monetary support (wages)

d.      Loss of services

e.       Loss of society (love, comfort, companionship)

(1)   Selders v. Armentrout: Child killed in car accident due to Δ’s negligence.  Δ asserts damages should be contributions children would have made minus reasonable costs of raising them.  Held: Loss of society, comfort, and companionship of child should be taken into account when calculating damages.

f.        Funeral expenses

g.       Punitives—split in jx

(1) CA: No punitives for wrongful death. 

5.      Survival: Period b/t injury and death; Surviving heirs in shoes of deceased

a.       Lost wages

b.      Medical Expenses

c.       Property Damage

d.      Pain & Suffering

(1)   No recovery if victim was unconscious

(2)   CA: No recovery of p& s after death.

e.       Punitives

f.        Death does not have to result from tort:

(1)   Car accident àInjuriesàHeart AttackàDeath; Heirs can still recover for car accident injuries

g.       Murphy v. Martin Oil: Decedent in a fire on Δ’s premises.  He lived 9 days before dying.  Held: Death does not negate the valid c/a for survival.  If tortious conduct results in death, survivors can recover for wrongful death and survival (for any damages suffered by the decedent during the interval b/t injury and death).

**Remember that wrongful death/survival is a REMEDY, NOT a c/a in itself.  Assume that c/a already found.**

6.      [Unborn children]: In the sense of how much (not liability v. no liability)

II.                Imputed Negligence/Vicarious Liability

A.     Respondeat Superior:

1.      General Rule: Employers are liable for the torts of their employees committed within the scope of employment.

a.       Rationale: Spread foreseeable risks as a cost of doing business; compensate innocent π; encourage safety

b.      Factors to determine whether Ee is acting w/in scope of employment:

(1)   Ee furthering the enterprise of Er

(2)   Er exercising control over Ee

c.       Fruit v. Schreiner: Guy @ mandatory conference where he was encouraged to mingle w/ other participants.  He is driving back from a bar @ 2am, and hits a car.  Held: Δ was acting w/in the scope of his employment.  Δ’s co would benefit from Δ’s activities and they took the risk by telling their Ees to socialize. 

(1)   Ct may also be attempting to spread the risk through insurance—compensate the injured victim and make businesses buy insurance to cover their risk of doing business.

2.      Exceptions:

a.       Coming and Going Rule: Employer not liable for Ees coming and going from work

(1)   Lundberg v. State: Husband killed while driving to worksite 80 miles away.  Held: Er not liable when Ee is coming and going from work—even if in furtherance of work.

(a)    Minority/dissent: If travel is job-related + creates a risk to others, maybe it should be covered.

b.      Frolic and Detour Rule: Not liable if Ee on frolic and detour (i.e. not work-related).

c.       Intentional torts: Er generally not liable for intentional torts of Ees

(1)   Rationale: Generally unforeseeble

(2)   Exceptions: If Er is put on notice; injury is FORESEEABLE (e.g. prior activities of the Ee)

(a)    e.g. Bar owner knowingly hires an overly-aggressive bouncer with a history of violent behavior.

3.      Distinguishing vicarious liability from primary liability

a.       Respondeat Superior liability: Negligence of Ee imputed to Er

b.      Primary Liability: Er engages in negligent conduct/does something wrong.

(1)   e.g. If a bus co hires a person w/ bad driving record who hits car.  The bus also has poorly maintained brakes.  The bus co is primarily liable for negligently hiring a bad bus driver and for not maintaining brakes.

(2)   e.g. π sexually assaulted in group home.  Er primarily liable for negligently hiring that Ee and not sticking to regulations.  Er vicariously liable for actions of Ee. 

B.     Independent Contractors

1.      General Rule: Employers not liable for the torts of independent K

a.       Murrel v. Goertz: G was an independent contractor who made monthly collection for Δ publisher.  G was in an argument with π, and hit π.  π injured and sought damages.  Held: Publishing co (Δ) had no control or contact w/ G over the physical details of the work. 

(1)   Test: the amount of control Δ has over worker

(2)   Criticism: Are corporations escaping liability by contracting out work?  Er getting financial benefit while creating a risk to the public.

2.      24 exceptions to the rule (evolving area of law)

a.       Maloney v. Rath: Δ’s car collides w/ car driven by π.  Accident caused when Δ’s brakes failed.  Δ’s mechanic had negligently fixed Δ’s brakes.  Who is liable?  Held: Independent contractor will be held liable if a dangerous instrumentality is involved in order for the π to recover (Rest.).  However, here, also a statutory duty to keep brakes in good repair & independent contractor’s negligence is NOT a defense, so Δ is liable.  BUT…Δ can then indemnify mechanic. 

(1)   This is NOT strict liability.  π must still prove that someone was negligent.

C.     Joint Enterprise

1.      4 elements:

a.       Agreement: Express or implied among members of group

b.      Common purpose carried out by group

c.       Community of pecuniary interest in that purpose

d.      Equal right of control of enterprise by all members

2.      Popejoy v. Steinle: Mother and daughter driving to get a calf.  On the way, they hit π.  Mother is killed.  π later experiences pain and attempts to collect from the now-dead husband’s estate on a theory that the husband and wife were furthering a joint enterprise by getting the calf.  Held: Husband not liable b/c π failed to demonstrate that the husband had any pecuniary interest to the calf.  The calf was to be raised by the daughter, and all profits would be given to her.

D.     Bailments: Renting/lending someone use of something

1.      Majority: No liability to lender unless negligently entrust another with his property.  Not liable for the torts of the borrower.

a.       Negligent entrustment = primary liability

(1) e.g. giving your keys to a drunk

b.      Exception: Statutory liability

(1)   Shuck v. Means: π injured when car was rented from Hertz to C, but driven by M.  Held: Hertz is liable b/c Minn. Vehicle Code: “Owner is liable for accidents if car loaned to someone.”

(a)    Rationale: Encourage owners to obtain insurance, and also encourage over-insurance b/c car renters are aware that renters will violate the rental agreement. 

III.               Affirmative Defenses to Negligence

A.     Comparative Negligence

1.      Historically: Contributory negligence → If π was at fault AT ALL, no recovery.

a.       Exception: “Last Clear Chance Rule”/Jackass Rule → If Δ had the last clear chance to avert danger and didn’t, then rule for the π.  (But still all or nothing).

(1)   Rationale: If Δ had the chance to avoid the accident after the opportunity was no longer available to π, then Δ should bear the loss.

2.      Now: System of shared fault (almost all jx) adopted.

a.       McIntyre v. Balentine: Car accident where both π and Δ were drinking—but Δ was also speeding.  Held: Ct. adopts a modified system of comparative negligence in Tenn.—Majority rule.  Thus, since jury found parties equally at fault, π cannot recover. 

(1)   If π is more than 49% at fault, then no recovery. 

(2)   BUT…in a case of multiple Δs…If π is 40% at fault and other Δs are at fault individually less than πs, then π can still recover. 

(3)   Modified systems have different wording in their statutes. 

(4)   Seatbelt defense: π has duty to mitigate consequences and use reasonable care. 

b.      CA: Pure form of comparative negligence: π can recover the % of damages that are Δ’s fault. 

(1)   BUT…if π is so far behind the Δ’s negligence, they jury unlikely to award π damages.

B.     Assumption of the Risk

1.      Express assumption of the risk—K doctrine

a.       Δ must prove:

(1)   K agreement expressly covers the risk, and if so,

(2)   K not void as matter of p.p.

(a)    No unequal bargaining power, especially if indispensable service offered. 

(b)   Cannot violate a safety statute

(c)    Void if conduct is intentional, wanton, or gross negligence

(3)   If both elements are proven, π can’t recover even if Δ was negligent

b.      Winterstein v. Wilcom: π signed a release before participating in a drag race which said he would assume all risk of injury at Δ’s racetrack.  During the race, π injured when his car hit an object negligently left on the track.  Held: π cannot recover.  K principles/freedom of K prevail over tort principles (i.e. compensating injured π).

(1)   K principles preserved here (i.e. bargaining was free and open; transaction didn’t involve public interest).  π was not forced to participate in the drag race.