Vicarious Liab. (VL) & Strict Liab. (SL)
- B liab. 4 A's tortious behav. even though B not acted tortiously
- Neg. isn't a C/A 4 VL
- One vicariously liab. is entitled 2 indemnity
- Respondeat Superior
- Er (employer) - ee (employee) / master -servant rel.
- Er liab. 4 ee's torts w/in scope of busi.
- Policy Goals
- Deep Pocket
- Rsbl Nexus w/Deep Pocket
- Need 2 figure out when liab. / when ee act w/in scope of empl.
- Dif. Rationales
- Er Control Rationale (Lundberg v. State)
- Nec. control by er req'ed but nobody knows what that means
- Ee's trip 2 & from apptment & drive home from last
appt'ment w/in busi. b/c used car in furtherance of busi.
- Enterprise Rationale (Fruit v. Schreiner)
- Inevitable loss 2 3rd person as part of busi. so ask if er
would've benefited if not 4 ee's torts
- But if er moves farther away, er not resp. 4 incr'ed accidents
b/c can't draw the line
- Neither theories incl. ee's commute into scope of empl.
- If do allow commute, more reluctant 2 incl. small errands
in enterprise rationale
- Intentional Torts of ee's
- Er liab. when tort rsbly connected w/empl. & w/in scope
- Intentional act in furtherance w/busi. & not matter if
not benefit busi.
- Indep. K'or
- No VL Even In Scope of Busi.
- Indep. K'or v. EE
- Er has no control over indep. K'or on day 2 day stuff
- Factors such as phys. detials, own manner, own X controlled
by indep. K'or
- Er control result but not how
- Like 2 structure as indep. K'or so benefit by no VL
- Non Delegable Duties (Maloney v. Rath)
- Er liab. if had non-delegable duty
- Common denominator is risky behav's
- Rest. states non delegable duty if indep. K'or in sit. where
grave risk of serious bodily harm / death
- SL v. Non-Delegable Duties
- In non delegation, someone is still neg. but in SL nobody
- Joint Enterprise (Popejoy v. Steinle)
- Partnership & informal arr. where law consid's each as
agent & servant so each liab. 4 other
- Similar 2 joint venture
- Agmt 2 activity
- Common purpose / goal
- Common pecuniary int.
- Equal voice & dir'ing the enterprise / = rt. of control
- Bailments (Shuck v. Means)
- Gen'ly v. Auto Sit.
- Not make bailor VL 4 bailee's use of chattels
- Prob's in autos so VL 4 vehicle owners through auto consent
- Hold auto owners VL b/c more able 2 cover by auto ins. &
P otherwise can't recov.
- Auto Consent Statute
- When operate auto w/consent & permission which is express
/ implied then VL 4 tortious acts of driver
- VL v. Neg. Entrustment
- If bailor neg. in entrusting the chattel like auto 2 kid,
then not VL but neg. entrustment
- Vicarious Contrib. Neg. (Smalich v. Westfall)
- In auto sit, P can't recov. against other driver b/c as owner
of car, vicariously contrib. liab. 4 driver's neg.
- Dif. Stand's
- Imputed Contrib. Neg. Used Harshly Against P
- Owner of car present in car, then presumed pwr 2 control so
impute contrib. neg.
- Silly b/c no real control so not use this theory anymore
- Imputed Contrib. Neg. Both Ways in Master Servant Rel. (maj.
- Contrib. neg. not imputed unless VL
- No Imputed Neg. / Both Ways (concurrence opinion)
- VL makes sense b/c intend 2 find someone resp. 2 injured party
when fiar by rsbl nexus but in imputing contrib. neg. not make
sense b/c free D's neg. from innocent P
- So abolish everything
- Corporation ER Exception
- Contrib. neg. of ee imputed 2 corp. P, er, b/c deep pocket
- Corp. acts only through ee so if no imputed contrib. neg.
then corp. entity can never B contrib. neg.
- Comp. Neg. & Both Ways Rule
- Comp. neg. makes erosion of both ways rule slow b/c less harsh
- It works all out pract'ly the same way btwn no both ways &
both ways when comp. neg. so people not care much
- Liab. so long as cause harm w/o anybody neg. so dif. from
- Basic approach of C/L neg. 4 many yrs
- Only applied in cert. sit's
- Policy 4 Applying SL
- Innocent P but D gets benefit & need activity so transfer
cost 2 D who can min. loss & spread risk
- Dang. activity so cost benefit analysis
- Harm falling on wrong people rsn
- Dif. Stand's
- Blackburn's Own Purpose (Rylands v. Fletcher)
- If bring stuff 2 your land 4 your own purposes, then keep
there @ peril
- If escape, liab. no matter watever the caution
- Lord Cairns' Nat. v. Non-nat.
- If intro non-nat. use of land, then conseq. of escape @ own
- Normal & nat. uses of land means more than being there
on its own
- Nat. use of land is character of activity, place, & rel.
2 the surrounding
- First Rest: Ultra Hazardous Activity
- One that nec'ly involves serious harm which can't B elim'ed
by utmost care
- Not matter of common usage
- Risk v. utility where value may outweigh the risk
- Ultra hazardous only 4 those that make it ultra hazardous
(Foster v. Preston Mill Co)
- Second Rest Factors: Abnormally Dang. Activity
- High degree of risk of harm
- Likelihood that harm results is great
- Inability 2 elim. the risk by rsbl care
- Not common usage
- Inapprop. of the activity 2 the place
- Value 2 community outweighed by dang. attributes
- 1st v. 2nd Rest.
- 2nd is abnormally dang. but 1st ultra hazardous
- 2nd added approp. location, extent of value 2 community
- 1st has utmost care but 2nd rsbl care
- 2nd more flexible w/6 factors
- 2nd has extent of risk dir'ly stated but not so w/1st
- 2nd sounds bit like neg. w/rsbl care, value 2 soc., etc.
- Common Usage in 1st & 2nd Rest
- Customarily carried out by the mass so exempt auto
- Policy that ct not want SL across the board
- SL As Incentive 4 Higher Safety (Indiana Harbor
Belt RR Co v. American Cyanamid Co)
- Focus on incentive not alt's by econ. analysis
- SL would prov. higher incentive where liab. cost & precaution
would B higher than econ. optimum 4 SL
- SL Allocation of Cost
- Allocative effect rather than distrib. so not finding deep
pocket but 2 give liab. 2 whoever
- Econ. only ans's min. cost not who should bear
- If activity abnormally dang., then pay own way by SL
- Not spread risk 4 all activities b/c soc'ly unacceptable,
unjust & unfair so expand where safety most imp. where harm
occurs but likes benefit as well
- Organic Famer & Pesticide (Langan v. Valicopters)
- Econ. Harm
- Not really abnormal harm
- Activity that can't pay own way
- More organic food b/c crop dusting in adjoining farms use
- SL v. Neg.
- More deterrance in neg.
- Narrower limit 4 SL so fewer conseq's than neg.
- Look @ SL restrictively 2 see what makes it extraord.
- Working w/neg. & intentional tort w/circle of liab. more
- Limitation of Liab. Based on Policy
- Most SL case by case but 4 blasting, maj. jxn said SL but
not 4 storing dynamite
- Foreseeable harm by unforeseeable intervening cause
- Most jxn says no SL b/c want 2 limit SL so restrictive of
intervening cause in SL
- Whatever supersedes in neg. supersedes in SL
- One Bite Rule (Sandy v. Bushey)
- For animals, if dometic animal's bad disposition known before,
then SL otherwise, no SL until 1 bite
- D's defense only if P behav's purposely, wantonly, knowingly,
& vol'ly put yourself in that sit. but contrib. neg. not a
- Comp. Neg.
- Can Mix Apples & Oranges
- Still no defense but can assign fault 2 P & lwr P's recov.
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