If an agency relationship exists, then generally things done by the agent are viewed in the eyes of the law as if they are done directly by the principal.

So, find a relationship exists and that tort was in some manner connected to that relationship

But can be different types of relationships that give rise to vicarious liability

Was the conduct of the same general nature as, or incident to, that which the servant was employed to perform?

Today, mere prohibitions by ER on a behavior are generally of little help to ER (taxi owner prohibiting freelancing and taxi crashes while freelancing)

Whether the conduct was motivated at least in part by a purpose to serve the master

1. If some harm is foreseeable: Liability, even if the particular type of harm was unforeseeable
   

2. The conduct must still relate to the employment in some way
   If conduct is something that occurs normally in every day life, then not liable for that
   

Most courts now require a “total abandonment” of the employment context for frolic and detour

Restatement (Second) Agency § 267 provides that: “One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.”

Hence, even in the absence of actual agency, a purported principal may be vicariously liable for the tortious conduct of its apparent agent.

BUT, even if tortfeasor is an IC, still may be liability for person hiring IC if an exception applies.

1. Principal actually exerts control over manner and means of doing work (even if no legal right to control)

3.Nature of Work:

-Work is “inherently dangerous” (i.e., can be carried on safely only with special skill and grave risks if done negligently) – Principal Liable if IC was negligent

-Work is “ultra hazardous” or “abnormally dangerous” (i.e., can’t eliminate risk of harm even if use utmost care – so strict liability) – Principal Liable REGARDLESS of IC negligence.

4. Non delegable duties (delegate work but not legal responsibility therefor), See note 2.A., p.764

Partners in a partnership can be liable for each other’s torts.

Similarly, persons involved in a joint enterprise (or joint venture) can be found liable

2) a common purpose to be carried out by the group;

(3) a community of pecuniary interest in that purpose, among the members; and

4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

(1) an agreement, express or implied, among the members of the group;

Historically ability to join multiple Defendants into a single suit was limited to situations where the defendants actually acted in concert

Today, substantially easier to sue all the relevant parties in a single action

Defendant liable the damage that he caused (traditionally included full harm even if others contributed, but today generally considered to be proportionate share of harm)

Impossible to know who caused damage, so all Defendants liable jointly for the harm

Show group jointly caused harm and treat each Defendant as also severally responsible for entire harm.

D’s act independently but still cause a single unified harm

Truck parks in traffic lane without blinkers, Driver inattentive and doesn’t see truck in time to avoid it, passenger harmed in the resulting collision

If defective product designed, manufactured and sold by unrelated persons, then the designers, manufacturers and sellers are still each under a duty to ensure the product is safe, so joint duty exists – See Note 7, p. 418

But, obviously, some intentional or negligent torts don’t necessarily require “fault” (e.g., innocent trespass to property)

SL torts, not so dangerous as to prohibit entirely, but sufficient risk that person has to undertake them at his own peril. Essentially, must insure society against the risks created regardless of fault

Breach (FOUND VIA SL)

2-4 same rules as in Negligence
BUT, Remember, even if SL case proven, Defenses previously discussed may apply!

Traditionally, SL for harms from animals, but over time see general shift toward fault approach

Generally: keeper of animal is SL for physical harm caused by trespass to property

Cats and dogs: liable only if negligence shown or specific statute on point

Livestock driven along highway: liable only if negligence for damages to property next to road and for accidents on the road

Fencing statutes: in jurisdictions where farm animals allowed to roam freely (no SL default rule), may define liability by whether (1) plaintiff “fenced out” animals (i.e., SL for D if P had fencing) or (2) D “fenced in” animals (i.e., SL only if D did not fence in)

Domesticated animals (determined by region’s customs) only SL if keeper had actual knowledge of reason to know (Scienter) that the particular animal had propensity to cause harm.

Collogually, the “one bite rule”, but know, can show propensity from OTHER facts too. That is, keeper can sometimes still be SL for even the first bite!

Keepers of Wild animals (determined by region’s customs) are SL for harm caused whether or not animal is known to be dangerous.

Considered wild even if well trained and allegedly domesticated

While US courts slow to adopt, today most jurisdictions recognize idea that an abnormally Dangerous activity results in strict liability when it results in damage to another

Blasting. Typically Abnormally dangerous, but if in remote location maybe not

Activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and

Activity is not one of common usage

But, Assumption of Risk can be a defense

As discussed previously, while plaintiff’s contributory negligence was a defense to a normal negligence case, it was NOT a defense to a strict liability case

But, in most comparative negligence jurisdictions, fault is still assigned between a SL defendant and the Plaintiff

A manufacturer is liable to a consumer for breach of an express warranty, when the manufacturer made explicit representations about the goods, even if the consumer bought the goods from a third party

Note, this is NOT negligence. It is a misrepresentation and founded in the incorrectness of a statement that the plaintiff relied upon.

Every item sold is impliedly fit for the purpose it was intended.

Consequently, if this implied representation is untrue, liability should result

consumer goods generally cannot limit personal injury damages

modern trend (as reflected in the 3d restatement) is to limit implied warranty claims to commercial settings and use the “strict liability” approach to products liability (which we turn to now) to address most product liability situations.

Remember, can still pursue negligence also!

Restatement 3rd of Torts sect 1 and 2 (see p. 841) provides that a person selling or distributing a “defective product” is liable for the harm caused

Still need to prove causation and damages though

Since this is strict liability, the plaintiff does not need to show that manufacturing defect is traceable to any specific act of negligence

There is not fault in following a flawed design Hence, the desire to move toward a negligence based approach for design defects.

Would a reasonable consumer have viewed product as defectively designed?

Foreseeable risks outweigh utility of product to society

But if complex product, is consumer view of soundness of design even relevant?

2. Alternative design does not substantially impair product’s utility

Sometimes, it is conceivable that a product’s utility is so small and the harm so great, that product really should never have been produced

Perhaps situation where the harm is part of the INTENDED purpose of product (e.g., bullets designed to maim) so looking for an Alternative Design is a non-sequitur.

Query whether determinations like this really should be reserved for the province of the legislature.

3Reasonable and prudent manufacturer would give warning, and

A manufacturer must have knowledge of a potential risk or danger inherent in its product before strict liability can be imposed for failure to warn.

However, that is often only provable by self-serving testimony, and maybe not at all if plaintiff has died

So, most states have a presumption that warning would be read and heeded

Other warnings serve solely an informative function: There is no way to use product in a way that reduces the health risk to the user.

Statutes of repose

for contribution, which if successful would allow for a pro rata sharing

In other limited circumstances, a paying defendant could seek indemnification
If successful, the non-paying defendant would have to reimburse the paying defendant for all funds that have been paid.

This allows paying defendants to obtain a portion of the amounts paid
based upon the relative responsibility of the parties.