Torts - flow chart.pdf - 1 E\u2019ee acted wrongfully and 1 e\u2019ee conduct was of the kind s he was hired to do Respondeat Superior 2 E\u2019ee acting w\/i

Torts - flow chart.pdf - 1 Eu2019ee acted wrongfully and 1...

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Vicarious Liability Respondeat Superior 1. E’ee acted wrongfully, and 2. E’ee acting w/i scope of employment 1) e’ee conduct was of the kind s/ he was hired to do 2) w/i hours and spacial boundaries 3) action at least in part motivated by employer’s interest Apparent Agency 1. principal creates appearance of an agency relationship, and knows/permits/represents agent as having the authority 2. 3rd party’s detrimental reliance 1) 3rd party relies on this representation 2) p change in position in reliance on the representation Duty Affirmative duty exists itself Omission/Comission Special Relationship Doc/Pati, transport, custodial promise & reliance (social companionship) Creation of Risk Creation of harm Begin to Rescue leave worse off? Affirmative duty to 3rd party Tarasoff: Doc/Pati/victim LO/Entrants Trespasser no duty note exceptions: discovered/frequent/child Licensee duty to make safe/warn known danger Invitee duty of rxb care to warn/protect Parental Immunity In immun. for intentional, wanton or fatal acts [Minority] total or no immun. [Majority] Carved out Immun. Uniquely parenting authority probable unrxb test [NY] immune if negligent supervision not immune if duty to world vs. immune if duty to child Government not immune if providing services/facility for replacement supplement of private activities Risk creation; promise & reliance; begin to act immune if discretionary behavior protection from external harm NIED (no eggshell) Direct [Majority] Zone of Danger - Falzone rxb fear of imminent harm resulted in SED and substantial bodily injury [Minority] Highly probable - Gammon FOS and highly probable; SED Indirect Portee Factors Loss of Consortium Breach Reasonable Person Standard Adams Factors or BPL Heightened standard of care (common carrier) Exceptions Children; emergency; physical disability; distinct apparent insanity Role of judge and jury Custom relevant to the sort of risk; factor Statutes Factors Safety statute prevent this type of harm protect this class of p? 4 approaches [rare] Negligence per se; some evidence Negligence per se w. excuse (judge) Rebuttable presumption (jury) Proving breach circumstantial evidence res ipsa loquitur type of event more likely than not due to negligence instrumentally within D’s exclusive control P contribute? Medical Malpractice Informed consent Causation Cause in Fact but-for reasonable certainty >50% Loss of Chance JSL JSL damages/contribution/settlement Market share (SL) national market share & variations Proximate Cause Eggshell P rule (take P as is)
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  • Fall '11
  • Dolin
  • Tort Law, assumption of risk

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