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Torts 2nd half semester w/o negligence, Joint Tortfeasors, Strict…

- - - - Show group jointly caused harm and treat each Defendant as also severally responsible for entire harm.
      - Thus any ONE D can be sued for ENTIRE award
      - Right of contribution between Ds
    - - Joint Duty (including vicarious liability situations)
        
        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
      - Indivisible 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
      - Concerted action (whether or not tortious aim)
        
        Gang mugs plaintiff – see Note 5, p. 417
    - - Courts in limited circumstances allowed a paying defendant to sue
      - for contribution, which if successful would allow for a pro rata sharing
      - of liability among the defendants.
      - • In a pro rata system, each defendant bears an equal share of the
      - amount paid.
    - - Joint and Several liability was the traditional approach since it was plaintiff centered and helped ensure compensation to P
      - But, Can be very unfair to a wealthy D
      - Penny harmed by negligence of Joe (90% responsible) and Daddy Warbucks (10% responsible), but Joe is insolvent, so Warbucks has to pay 100% and gets no contribution from Joe
      - And, as the law moves more toward comparative negligence, does retaining joint and several make sense?
    - - 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.
- - - - Product Liability
        
        Contractual Claims
        
        Express Warranty
        
        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.
        
        Express Warranty Claims today?
        
        Generally can bring such claims still.
        
        Historically, P needed to show actual reliance on D’s statement (subjective). Today, some courts relax so just need to show a reasonable person would have relied (objective). Note 3, p. 828
        
        Similarly, originally the statement relied upon had to be very specific (e.g., glass WILL not break). Today, often allow recovery for less specific claims.
        
        Implied Warranty
        
        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.
        
        Contract based approach
        
        Privity: Only sue those actually party to a contract
        
        Concept of fairness of tracing each link in chain from design to ultimate consumer purchase
        
        But, creates needless litigation
        
        And, in practice, just ended up in manufacturers escaping liablility
        
        Strict Liability
        
        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
        
        APPROACH
        
        Duty to NOT sell or distribute a “defective product
        
        In defining “defective product”, there are three categories of defect, each with their own rules
        
        Failure to Warn defects
        
        4 more items...
        
        Manufacturing defects
        
        4 more items...
        
        Design defects
        
        2 more items...
        
        Breach of Duty
        
        Causation
        
        Factual Causation
        
        Proximate Causation
        
        Damages
        
        Negligence of Manufacturer
        
        Why use Negligence?
        
        Duty to avoid foreseeable risks
        
        Rejection of “inherently dangerous” requirement
        
        Thus, duty to not manufacture, sell or distribute a foreseeably dangerous product
        
        If breached duty and rest of negligence elements met (causation and damages), then liability follows
        
        Defenses
        
        Generally, comparative fault approach also applies in strict liability products cases
        
        That is, assumption of risk just a factor in weighing comparative fault, not a complete bar to recovery
        
        Even though conceptually it seems impossible to compare one’s negligence (where degree of fault can be determined) to another’s strict liability (where technically there might be NO FAULT at all), in the products liability context “strict liability” still has a heavy underpinning in fault and negligence concepts
        
        Manufacturer not liable for unforeseeable abnormal use of product (sometimes couched as lack of factual cause or finding of no defect in design of product, rather than a defense)
        
        Statutes of repose
        
        NON MANUFACTURER LIABILITY
        
        retailer of the original product is ALSO generally StrictlyL for the sale of a defective product
        But often can seek indemnity from Manufacturer
        
        Generally, treat everyone in the vertical chain of distribution as SL
        But, in many states legislation modifies and limits Wholesaler/retailer liability to own negligence
        
        Who is a “seller” in the chain?
        
        Mere occasional sales not treated as a seller
        
        Merely acting as “agent” or “processor” shouldn’t be seller (since merely “rendering services to facilitate the sale”)
        
        Amazon “marketplace”?
        
        Sevice Providers
        
        Generally, services involve skill and therefore associated torts fall within the realm of negligence.
        
        But, if skill involves a “product” then an argument “could” be made that the service provider is also a “seller” in the distribution chain, and therefore become strictly liable
        
        INJURY TO WHICH SL APPLIES
        
        Generally products liability encompasses personal injury or damage to property (other than the product itself, but there may be a breach of contract claim for that value)
        
        But other losses not recoverable under SL claim:
        
        Failure of product to perform its intended function (but might be an express warranty claim)
    - - 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
      - RESTATEMENT SECOND
        Abnormally Dangerous if:
        
        High degree of risk of harm
        
        Great gravity of likely harm
        
        Risk cannot be eliminated by exercising reas. care
        
        Activity not matter of common usage
        
        Activity inappropriate to place carried on
        
        value of activity to community not proportionate to risks
        
        Case by case determinations; fact sensitive weighing of factors. Not all required.
      - Importance of Location
        
        Blasting. Typically Abnormally dangerous, but if in remote location maybe not
      - Restatement 3d, sec. 20
        
        Abnormally Dangerous if:
        
        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
    - - Traditionally, SL for harms from animals, but over time see general shift toward fault approach
      - Rules apply to anyone who keeps, possesses, or harbors animal. NOT just owner of animal.
      - Several dimensions of analysis
        
        Trespass on property of another
        
        Type of animal (Domesticated vs. Wild)
        
        Local customs/expectations
      - Trespassing Animals
        
        Generally: keeper of animal is SL for physical harm caused by trespass to property
        
        Exceptions:
        
        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
        
        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!
        
        Some states may have statutory SL regardless of knowledge
      - Wild animals
        
        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
- - - - If some harm is foreseeable: Liability, even if the particular type of harm was unforeseeable
      - 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
    - - Restatement 2d § 228(1)(d):
      - Intentional torts involving the use of force result in liability if use of force “not unexpectable by master”
      - Restatement 2d § 231:
      - Consciously criminal or tortious acts not per se excluded from scope of employment
  - - - 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
      - “Frolic and detour”
        
        Frolic = employer not liable
        
        Detour = employer liable
        
        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.
    - - Unlike an EE, generally, vicarious liability does not attach to an independent contractor.
      - How to distinguish between an IC and an EE?
      - Typically based on degree of control ER exercises over manner in which work is conducted. See, Murrell v. Goertz, p. 760
      - IC does work on his own time, manner and without direction
      - BUT, even if tortfeasor is an IC, still may be liability for person hiring IC if an exception applies.
      - Person hiring (Principal) Liable IF:
        
        Principal actually exerts control over manner and means of doing work (even if no legal right to control)
        
        Principal engages an incompetent IC
        
        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.
        
        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
      - Elements
        
        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;
    - - Bailment: voluntary transfer by a person (Bailor) of possession of goods to another (Bailee) for some purpose
      - Generally, just the fact that goods are used by another does not make the owner liable for the bailee’s tort
      - Neighbor borrows my bicycle and negligently crashes into a pedestrian. I am not liable.
      - But, some exceptions for automobiles
      - Family cars (note 2.A., p. 773)
      - Contrast: Negligent entrustment (owner negligent in letting Bailee drive car)
    - - Generally: Parents are not liable for the torts of their minor children.
      - Exceptions:
        • A plaintiff could prove the parent was himself or herself negligent