Vicarious Liab. (VL) & Strict Liab. (SL)


  1. Def.
    1. B liab. 4 A's tortious behav. even though B not acted tortiously
    2. Neg. isn't a C/A 4 VL
    3. One vicariously liab. is entitled 2 indemnity
  2. Respondeat Superior
    1. Er (employer) - ee (employee) / master -servant rel.
      1. Er liab. 4 ee's torts w/in scope of busi.
    2. Policy Goals
      1. Deep Pocket
      2. Rsbl Nexus w/Deep Pocket
        1. Need 2 figure out when liab. / when ee act w/in scope of empl.
    3. Dif. Rationales
      1. Er Control Rationale (Lundberg v. State)
        1. Nec. control by er req'ed but nobody knows what that means
        2. Ee's trip 2 & from apptment & drive home from last appt'ment w/in busi. b/c used car in furtherance of busi.
      2. Enterprise Rationale (Fruit v. Schreiner)
        1. Inevitable loss 2 3rd person as part of busi. so ask if er would've benefited if not 4 ee's torts
        2. But if er moves farther away, er not resp. 4 incr'ed accidents b/c can't draw the line
      3. Commute
        1. Neither theories incl. ee's commute into scope of empl.
        2. If do allow commute, more reluctant 2 incl. small errands in enterprise rationale
      4. Intentional Torts of ee's
        1. Er liab. when tort rsbly connected w/empl. & w/in scope
        2. Intentional act in furtherance w/busi. & not matter if not benefit busi.
  3. Indep. K'or
    1. No VL Even In Scope of Busi.
    2. Indep. K'or v. EE
      1. Er has no control over indep. K'or on day 2 day stuff
      2. Factors such as phys. detials, own manner, own X controlled by indep. K'or
      3. Er control result but not how
      4. Like 2 structure as indep. K'or so benefit by no VL
    3. Non Delegable Duties (Maloney v. Rath)
      1. Er liab. if had non-delegable duty
      2. Common denominator is risky behav's
      3. Rest. states non delegable duty if indep. K'or in sit. where grave risk of serious bodily harm / death
    4. SL v. Non-Delegable Duties
      1. In non delegation, someone is still neg. but in SL nobody neg.
  4. Joint Enterprise (Popejoy v. Steinle)
    1. Def.
      1. Partnership & informal arr. where law consid's each as agent & servant so each liab. 4 other
      2. Similar 2 joint venture
    2. Elements
      1. Agmt 2 activity
      2. Common purpose / goal
      3. Common pecuniary int.
      4. Equal voice & dir'ing the enterprise / = rt. of control
  5. Bailments (Shuck v. Means)
    1. Gen'ly v. Auto Sit.
      1. Not make bailor VL 4 bailee's use of chattels
      2. Prob's in autos so VL 4 vehicle owners through auto consent statutes
      3. Hold auto owners VL b/c more able 2 cover by auto ins. & P otherwise can't recov.
    2. Auto Consent Statute
      1. When operate auto w/consent & permission which is express / implied then VL 4 tortious acts of driver
    3. VL v. Neg. Entrustment
      1. If bailor neg. in entrusting the chattel like auto 2 kid, then not VL but neg. entrustment
  6. Vicarious Contrib. Neg. (Smalich v. Westfall)
    1. Def.
      1. In auto sit, P can't recov. against other driver b/c as owner of car, vicariously contrib. liab. 4 driver's neg.
    2. Dif. Stand's
      1. Imputed Contrib. Neg. Used Harshly Against P
        1. Owner of car present in car, then presumed pwr 2 control so impute contrib. neg.
        2. Silly b/c no real control so not use this theory anymore
      2. Imputed Contrib. Neg. Both Ways in Master Servant Rel. (maj. opinion)
        1. Contrib. neg. not imputed unless VL
      3. No Imputed Neg. / Both Ways (concurrence opinion)
        1. 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
        2. So abolish everything
      4. Corporation ER Exception
        1. Contrib. neg. of ee imputed 2 corp. P, er, b/c deep pocket
        2. Corp. acts only through ee so if no imputed contrib. neg. then corp. entity can never B contrib. neg.
    3. Comp. Neg. & Both Ways Rule
      1. Comp. neg. makes erosion of both ways rule slow b/c less harsh
      2. It works all out pract'ly the same way btwn no both ways & both ways when comp. neg. so people not care much


  1. Def.
    1. Liab. so long as cause harm w/o anybody neg. so dif. from VL
    2. Basic approach of C/L neg. 4 many yrs
    3. Only applied in cert. sit's
  2. Policy 4 Applying SL
    1. Innocent P but D gets benefit & need activity so transfer cost 2 D who can min. loss & spread risk
    2. Dang. activity so cost benefit analysis
    3. Harm falling on wrong people rsn
  3. Dif. Stand's
    1. Blackburn's Own Purpose (Rylands v. Fletcher)
      1. If bring stuff 2 your land 4 your own purposes, then keep there @ peril
      2. If escape, liab. no matter watever the caution
    2. Lord Cairns' Nat. v. Non-nat.
      1. If intro non-nat. use of land, then conseq. of escape @ own peril
      2. Normal & nat. uses of land means more than being there on its own
      3. Nat. use of land is character of activity, place, & rel. 2 the surrounding
    3. First Rest: Ultra Hazardous Activity
      1. One that nec'ly involves serious harm which can't B elim'ed by utmost care
      2. Not matter of common usage
      3. Risk v. utility where value may outweigh the risk
      4. Ultra hazardous only 4 those that make it ultra hazardous (Foster v. Preston Mill Co)
    4. Second Rest Factors: Abnormally Dang. Activity
      1. High degree of risk of harm
      2. Likelihood that harm results is great
      3. Inability 2 elim. the risk by rsbl care
      4. Not common usage
      5. Inapprop. of the activity 2 the place
      6. Value 2 community outweighed by dang. attributes
    5. 1st v. 2nd Rest.
      1. 2nd is abnormally dang. but 1st ultra hazardous
      2. 2nd added approp. location, extent of value 2 community
      3. 1st has utmost care but 2nd rsbl care
      4. 2nd more flexible w/6 factors
      5. 2nd has extent of risk dir'ly stated but not so w/1st
      6. 2nd sounds bit like neg. w/rsbl care, value 2 soc., etc.
    6. Common Usage in 1st & 2nd Rest
      1. Customarily carried out by the mass so exempt auto
      2. Policy that ct not want SL across the board
  4. Safety
    1. SL As Incentive 4 Higher Safety (Indiana Harbor Belt RR Co v. American Cyanamid Co)
      1. Focus on incentive not alt's by econ. analysis
      2. SL would prov. higher incentive where liab. cost & precaution would B higher than econ. optimum 4 SL
    2. SL Allocation of Cost
      1. Allocative effect rather than distrib. so not finding deep pocket but 2 give liab. 2 whoever
      2. Econ. only ans's min. cost not who should bear
      3. If activity abnormally dang., then pay own way by SL
      4. 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
  5. Organic Famer & Pesticide (Langan v. Valicopters)
    1. Econ. Harm
      1. Not really abnormal harm
    2. Activity that can't pay own way
      1. More organic food b/c crop dusting in adjoining farms use pesticide
  6. SL v. Neg.
    1. More deterrance in neg.
    2. Narrower limit 4 SL so fewer conseq's than neg.
      1. Look @ SL restrictively 2 see what makes it extraord.
      2. Working w/neg. & intentional tort w/circle of liab. more tightly drawn
  7. Limitation of Liab. Based on Policy
    1. Most SL case by case but 4 blasting, maj. jxn said SL but not 4 storing dynamite
  8. Causation
    1. Foreseeable harm by unforeseeable intervening cause
      1. Most jxn says no SL b/c want 2 limit SL so restrictive of intervening cause in SL
    2. Whatever supersedes in neg. supersedes in SL
  9. One Bite Rule (Sandy v. Bushey)
    1. For animals, if dometic animal's bad disposition known before, then SL otherwise, no SL until 1 bite
    2. D's defense only if P behav's purposely, wantonly, knowingly, & vol'ly put yourself in that sit. but contrib. neg. not a defense
  10. Comp. Neg.
    1. Can Mix Apples & Oranges
      1. Still no defense but can assign fault 2 P & lwr P's recov. (CA)

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