a Recognized and Understood the dangerrisk b Must be voluntary voluntarily

A recognized and understood the dangerrisk b must be

This preview shows page 12 - 15 out of 31 pages.

a. Recognized and Understood the danger/risk
Image of page 12
b. Must be voluntary- voluntarily chose to encounter - Must be both negligence and assumption of risk in the same case by P - P’s negligence will generally be compared to D’s negligence - D must show P knowledge of risk and voluntary choice to encounter the risk. If P is a member of a statutory protected class, she is deemed incapable of assuming the risk - Exculpatory Clause (provisions must be part of the K; P must be aware of the provision and encompass P injury; ambiguities are construed against the drafter-typically the D. (fine print provision may be unenforceable- provision must be part of the k- though words “negligence and Breach of warranty” need not appear) Enforceability limited to negligence claims X. VICARIOUS LIABILITY- General Considerations -Parent / Child -Bailment - employer/ employee Independent contractor -joint enterprise -dram shop 1. Doctrine of Respondeat Superior – An employer is vicariously liable for tortious acts while employee in scope of employment. (company cannot shield themselves from employee tortious conduct- drunk driving/ tortious act must have been performed by the employee) a. course and scope b. intentional acts c. committed in furtherance of empl biz 2. Independent Contractors – employer who fails to use due care when selecting a competent contractor may be liable for torts of indep cont. (614) *** general rule***- one who employs and indep cont will NOT be held liable for negligent conduct of general cont. – employer has no right to control the manner in which an indep cont. performs a contract. a. nondelegable duties- (g619)- the person upon whom the a nondelegable duty is imposed is responsible for the independent contractor actions in negligently performing the duty. -INCLUDES- [ apparent ostensible agent or hired to do non- delegable duties (keep cars repaired, reception area clean) - OR activity so extrinsically harmful (eminent probability of danger)-blasting, use of fire to clear land 3. Joint Enterprises one member of a joint enterprise is vicariously liable to outsiders for conduct of other members IF there is mutual right to control and a common business purpose. An interest in profit is necessary in order to impose VL on a a Joint Venture Theory
Image of page 13
The burden of establishing the existence of a joint venture is upon the party asserting that the relationship exists. The Restatement of Torts [Restatement (Second) of Torts Section: 491 comment c at 548 (1965)] establishes four elements of a joint venture as: “(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group (3) a community or pecuniary interest in that purpose, among the members (4) an equal right to voice in the direction of the enterprise, which gives a right of equal control.” 5. Bailments ( bailment DEF= a. Many states impose VL on the owners of auto for the neg. of the driver. Some of the states base VL on automobile consent statutes, some on the common law fiction
Image of page 14
Image of page 15

You've reached the end of your free preview.

Want to read all 31 pages?

  • Fall '13
  • jimgash
  • duty, assumption of risk

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes