4 blocks not enough, quick break could go either way, bar too far Ira S. Bushey Drunk seaman turns wheel, sinks dock, US gov't held liable, used related risk test, foresight test, and 'location of the wrong' test; likely 'deep pockets' Relationship Less clear relationship, e.g., independent contractors Apparent authority "Holding out" - the principal "holds out" the agents as employees with responsibilities (ala HMO with doctors) Justifiable reliance - similar to estoppel, patients rely on that holding out Implied authority If the principal has enough control to be considered respondeat superior , control is being exerted with certain procedures Doctor makes ultimate decision, but VL on the fringe, HMO has control Either test can prove a VL relationship Petrovich Doctor does not catch cancer, patient sues HMO, HMO held liable because it was both an apparent authority and an implied authority Justif - "cheapest cost avoider," incentives, deep pockets, protects 3d parties, but clashes with contr. justice, indiv. responsibility and common sense VL and Intent torts: Could go either way, depending on how much the employer knows of the offending action Nuisance Move from SL to negl., intentionality, or abnormally dangerous R2 : "There is liab. for a nuisance only to those to whom it causes significant harm, of a kind that would be suffred by a normal person in the community or by property in normal condition and used for a normal purpose." Ex: drive-in might be held "hyper sensitive" to light product; but TV screen nuisanced by radiation (TV=common) Common nuisance: fumes, stenches, pollution, sprays Must be "intentional and unreasonable" 2 "reasonable" stand.; RS: "gravity of the harm outweighs the utility of the actor's conduct," Prah ; Live/let live ( de minimis threshold): certain thres. betw. liv/let liv and reciprocity, below=no L, above SL, Fontainebleu Injunctive relief: Crts. hesit. to inj.; risks: parties'd waste resor. barg. surp.; strategic beh.'d stop settlement (e.g. homeowner w/$100 dam. and entit. to $2 million co); typically not used for incr. risk of harm (halfway house) Aff. def : extra sensitivity, "coming to the nuisance" Coase and nuisance law Matrix I. Injunction/Nuisance Fac. can't pollute w/o po. allow., otherwise inj.; can trade entitl. for bribe; pollute if prof. (fac. bribe)>subj. dam. Ensign - inj better than dam if po. subj. damage high; Prah - min. view, rej FB , functional value? II. Dam/Nuisance Fac. can pollute; but must pay "objective" dam. of house owner, will pollute if prof.>obj. dam. Boomer - cement plant cannot be enjoined, but po get "permanent dam" III. Injunction, No Nuisance Fac. can pollute at will and will only stop if bribed not to; will pollute unless subj. dam (k to stop)>prof. Fountainbleu - No entitle. to sunshine/air, no dam can be brought IV. Dam, No Nuisance Po. may stop fac., but must compensate lost prod.; will pollute if profits>subj. dam. Spurr - "Purchased injunction," get inj. if po. wants it enough Transaction costs More than one homeowner=collective bargaining; hold-out/freeloaders; imperfect information; animosity Tendency to not bargain after nuisance dec. (20 close call cases in article): nature of advoc
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- Spring '19