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

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)