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DAMAGES
COMPENSATORY DAMAGES
● Purpose/goal:
- Comp victims to: a. Restore them to pre-tort condition (“make them whole again”) or b. Achieve corrective justice
- Deter tortious conduct ● Med & eco experts often testify on:
- Pain & suffering;
- Med expenses; &
- Lost earnings ● Avail for past, present, & future ( IF applic) ○ Juries must consider BOTH PAST & FUTURE injuries/losses ○ Challenges in estimating future ● Damages for BODILY injury may =:
- Pecuniary damages &/OR
- NON -pecuniary damages ● Damages for PROP injury = measured by: a. Loss in value of prop or b. Cost to repair (or replace) ○ WHICHEVER = LESS ● P must prove by PREPONDERANCE OF EVID that she HAS suffered OR WILL IN FUTURE suffer losses for which she claims damages ● P can ONLY sue ONCE for her harm - EVEN IF she SUBSEQUENTLY sustains UNANTICIPATED harm owing to D’s tortious conduct ● “Mitigation” - P gen has duty to take steps to minimize expected losses from accident (e.g. get proper care, get employment) ● ≠ TAXABLE
PECUNIARY DAMAGES
● Damages for QUANTIFIABLE ECONOMIC losses resulting from D’s conduct a. Med expenses; b. Lost wages/lost earnings/economic loss; c. Custodial care; &/or d. Prop damage ● Ref to as “out-of-pocket” damages bc rep DIRECT FINANCIAL losses incurred by P due to D’s actions that = expenses P has had to or will have to pay THEMSELVES ( PERSONAL financial burden imposed on P)
PAST PECUNIARY DAMAGES
● Easiest recoverable damages to prove ● Past med expenses = established by: a. Med bills or b. Reference to what P’s insurer paid to hosp/dr ● Past lost earnings may = bit harder to establish
FUTURE PECUNIARY DAMAGES
STDRD TABLES
● W/ future calcs - experts often use standardized tables based on statistical data ● Life expectancy tables often used when future med expenses = long-term ● Tables often distinguish btwn:
- Race &
- Gender ● Can LARGELY affect damages amounted ● ONLY SOME states allow - others DO NOT bc argument re tables = discrimination
FUTURE LOST EARNINGS
● Assuming P (bc of D’s harm): a. CANNOT work for certain amount of time or b. CAN NEVER work again ● Measured by life expectancy which req court to ask/answer 2 Qs:
- EXPECTED earnings of EACH future yr (which then = discounted to present value) &
- Probability that P will ACTUALLY be in workforce in that yr ● Considerations:
- Avg work career of employee in P’s field;
- If there = reason to believe P’s career WOULD HAVE varied from norm;
- Change in wages over yrs (gen change in min wage/pay, promotions, etc.); &
- If P = unemployed, underemployed, or under legal disability that impairs her work ability (e.g. undocumented status)
CALC TO PRESENT VALUE
● Courts must 1ST consider inflation - 1 $ today = worth MORE than $1 in future due to its POTENTIAL earning capacity IF invested ○ Thus - to determine PRESENT value of FUTURE damages - jury needs to discount/reduce value of those future payments to reflect their worth in today's terms ■ Req jury to “discount to present value” awards made for FUTURE pecuniary losses by awarding LESS THAN projected $ amount of those losses ● Formula - PV = FV/(1+r) n ○ PV = present value ○ FV = future value ○ r = discount rate ○ n = # of periods into future ● Rationale for discounting to present value = avoids overcomp P ● Majority of courts DO NOT discount awards for INTANGIBLE losses 2 Steps
- Jury determines what losses (e.g. wages or med expenses) P will incur in future & assigns dollar value to these losses - taking into account inflation ● 2 ways to deal w/ inflation w/ respect to present value calcs ( EITHER = ACCEPTABLE ) 1. Assume ZERO inflation & then calc comp w/ interest rate w/ 0 inflation - EX: w/ 2% real interest - comp for lost earnings in 1990 on present income of $7.2k & NO inflation (0 inflation) = $5, 2. Use HIGHER discount rate based on CURRENT 10 yr interest rate - then subtract REAL interest rate & assume remaining # = expected inflation rate
- Jury’s calculated future losses (from step 1) then = discounted to present value ● Discounted to present value = reduced to sum which IF invested - will = amount of future loss AT TIME IT OCCURS IN FUTURE
● While $ CANNOT FULLY comp P for harm suffered by injury (resulting harm from D’s conduct) - awarded amount may allow P to engage in activities or experiences that sub for those lost due to injury ● Gen ≠ allowed for prop damage suffered by P re D’s tortious conduct
PAIN & SUFFERING
PFC:
● Worry; ● Anguish; & ● Grief ○ Elements ALL = hard to quantify ● Severity of injury may = reasonable predictor of size of pain & suffering award ○ Reflects “vertical equity” - degree to which MORE SEVERE types of injuries receive MORE comp (on avg) ● HOWEVER , courts may also have trouble in comparing SIMILAR cases/harm ○ There may = great variability W/IN SAME category (e.g. broken arm may affect 1 MORE than another) ○ Diff Ps can experience DIFF levels of pain & suffering from SIMILAR OR EVEN SAME incidents
PER DIEM RULE
● P must show pain = CONTINUOUS thing - CONSTANT & ONGOING persisting for SPEC amount of time (could = P’s whole life or just for next 10 yrs due to injury/harm suffered by D’s conduct) ○ Req evid re SUSTAINED, CONTINUOUS pain over extended period - RATHER THAN occasional or sporadic occurrence ● Challenge in how to assign monetary value to pain & suffering ● Pier diem approach - INSTEAD OF presenting LUMP SUM for lifetime of suffering - calc worth of EACH second, minute, hour, & yr of pain in dollars & cents ○ Break down life expectancy into small time periods (e.g. seconds & minutes) ■ Then - determine monetary worth of EACH small time period ○ Avoids stating large figure (lump sum amount of damages seeking) w/out breaking it down - which could intimidate jury or court (i.e. seem excessive) ● Initially prohibited but now = acc in MAJORITY juris a. W/ cautionary instructions or b. At trial judge’s discretion ○ Juris who DO NOT allow per diem for pain & suffering ( MINORITY ) may STILL allow it for future med costs damages
HEDONIC DAMAGES (“LOSS OF ENJOYMENT OF LIFE”)
● Damages” = for “loss of enjoyment of life” that go BEYOND pain & suffering CASES: ● McDougald v. Garber ○ Damages for loss of enjoyment of life req:
- Some degree of cognitive awareness of loss by P = pre-req for recovery for loss of enjoyment of life & - i.e. some level of P’s awareness re their pain & suffering as result of D’s tortious conduct
- Damages for loss of enjoyment of life should = considered as part of damages for pain & suffering - NOT separate damages award
○ Bc NON -pecuniary damages comp for physical & emotional consequences of injury (i.e. pain & suffering) - they = LIMITED when they NO LONGER serve that goal (when pt ≠ aware) ■ Bc then they become punitive CONTROLLING AWARDS ● Adjustments to damages awards
- Discount to present value;
- Adjust for inflation;
- Prejudgment interest awarded; &
- Measure life expectancy ● Damage awards criticized for their subjectivity - potential to lead to vast diffs in valuations from jury to jury ○ Predicting amount of award becomes challenging due to this wide variation ● Occasional high awards & their unpredictability create uncertainty among potential Ds which then results in OVER deterrence - ○ Leads certain enterprises like pharmaceutical co.s to avoid developing legally risky product lines
EXCESSIVE DAMAGES
● Cases w/ SERIOUS injuries often raise Qs re EXCESSIVE damages ● Majority courts use "shock the conscience" stdrd to review jury awards ○ Permits LIMITED review - mainly in cases w/ CLEAR SIGNIFICANT unjust error in amount awarded ● Factors to determine IF damages = excessive:
- Awards in comparable cases / Verdict Settlement Reporter;
- Future earnings & life expectancy; &
- Current pain & suffering
APPROACHES TO ADDRESSING PROB
REMITTITUR & ADDITUR
● Courts often hesitant to app these ad hoc approaches EXCEPT in EXTREME cases of jury error Remittitur ● Allows P to acc (consent to) reduced award when jury award exceeds REASONABLE amount in order to avoid new trial ● Permitted in BOTH state & fed courts - BUT state courts can order this to = done while fed courts CANNOT ○ Fed courts can ONLY recommend remittitur option - CANNOT order it bc of 7th Am Additur ● Allows P to consent to increasing UNDULY LOW award to LARGER award in exchange for avoiding trial ○ ≠ avail in fed court - violates 7th Am
“CAPS” ON DAMAGES (ABSOLUTE DOLLAR CEILINGS)
● Substantial rise in damages awarded to successful Ps in tort actions ( PARTICULARLY in med mal cases) has triggered leg response in many states involving capping damages ○ Apprx ½ of states have implemented absolute dollar ceilings (“caps”) on pain & suffering awards ● Make avg size of awards more predictable bc no award can exceed set ceiling ● HOWEVER , may result in unfairness to SEVERELY injured victims ( PARTICULARLY young ones) who may:
PUNITIVE DAMAGES ● AKA "exemplary damages” ● Awarded in EXCEPTIONAL cases ( ONLY SMALL %) as ADDITIONAL to comp damages ● Purpose:
- Punish D for tortious conduct;
- Deter others from pursuing same/similar tortious conduct; &
- Express community’s strong disapproval of such conduct ● Behavior warranting punitive damages varies among states, MAJOR req conduct = MORE blameworthy than gross neg ● Used to deter tortious conduct that = EXTREMELY blameworthy behavior ○ Ds who KNOW their actions could cause harm MIGHT ≠ deterred enough to engage in such conduct by comp damages ALONE ■ Thus - threat of punitive damages aims to make them think about costs of their actions & deter them from engaging in harmful behavior ● CANNOT award punitive damages to NON -parties (i.e. 3rd parties) for D’s conduct ● ARE TAXABLE
CONTROLLING AWARDS
● Similar to pain & suffering damages - punitive damages have issues w/ size & unpredictability of awards exist ● Jury has TOTAL discretion whether or not to award them ○ HOWEVER , amount of award = subj to limitation under both state law & U.S. Constitution ■ 14th Am (DP) restricts states from imposing EXCESSIVELY SEVERE OR DISPROPORTIONATE punitive damages that = inconsistent w/ principles of punishment’s:
- Fairness &
- Proportionality (compared to harm suffered by P) ● MAJORITY of states have placed statutory limitations on punitive damage awards ● 3 factors used in evaluating constitutionality of punitive damages award:
- Degree of reprehensibility of D’s conduct;
- How morally wrong D’s conduct was
- Courts evaluate factors such as:
- Intent behind conduct;
- If conduct = deliberate or reckless; &
- Extent of harm
- Disparity or proportion btwn harm or potential harm resulting from D’s conduct & amount of punitive damages awarded; &
- If amount punitive damages = EXCESSIVE compared to ACTUAL harm suffered by P from D’s conduct
- Diff btwn this remedy & civ or crim penalties authorized to punish Ds in comparable cases
- Ensures punitive damages DO NOT exceed boundaries of what = REASONABLE OR APPROPRIATE punishment under law for similar misconduct to D’s
D’S WEALTH
● D’s wealth CANNOT justify OTHERWISE UNCONST punitive damages award ● Courts vary re evid re D’s wealth as consideration in measurement of punitive damages ○ Some state courts or statutes req P to submit this evid ○ Others hold this info = admissible, BUT = discretionary - RATHER THAN mandatory ○ Others DO NOT allow it AT ALL ● Where P = entitled to offer such evid - trial often = bifurcated (split in 2) to minimize prejudice to D ○ Jury 1st:
- Assesses liability;
- Awards comp damages; &
- Determines IF punitive should = awarded ○ IF jury finds D = liable & punitive damages should = awarded - jury:
- Hears new evid &
- Engages in further deliberations to calc amount of punitive damage award
EMPLOYER VICARIOUS LIABILITY
● States vary re when P seeks to impose punitive damages on employer based on vicarious liability ● In some states - punitive damages flow w/ vicarious liability ○ i.e. if emp P commits tortious act w/in scope of their emp - employer may AUTO = held for punitive damages ● In others- punitive damages can = awarded awarded against master or principal (employer) bc of act done by agent (P emp) ONLY in SPEC instances: a. Principal (employer) or managerial agent (manager/supervisor) EXPLICITLY AUTHORIZED BOTH action (wrongful act in Q) & manner in which it = carried out by P emp; b. P emp = unfit for their positions & employer or managerial agent = reckless in hiring or retaining him; c. P emp held managerial position & was acting w/in scope of emp when committing wrongful act; or d. Employer or managerial agent SUBSEQUENTLY ( AFTER wrongful act) ratified or approved act CASES: ● Grimshaw v. Ford Motor Co. ○ 1972 - ford pinto struck in rear by another car resulting in gas tank rupturing horrific fire ■ Driver of pinto = killed ■ Teenage passenger = badly burned ○ Jury awarded passenger:
- $2.5M comp damages &
- $125M punitive damages ○ Trial court reduced award to $3.5M ■ Internal memo revealed ford had compared:
- Costs of deaths & burn injuries for which it would = liable against
- Costs of safer fuel system ● Costs to redesign safer fuel system = more so ford decided to do nothing ■ Court held ford:
- Put biz interests over human life &
- Valued human life harshly low ($200k) ■ Thus justifying harsh punitive damages
LOSS TO ESTATE
● D req to pay damages EVEN IF there = NO beneficiary ● Comps for ONLY FINANCIAL impact on DECEDENT’S ESTATE ○ Comps estate for THEIR financial loss OWING TO decedent's death ■ Damages THEY sustained - NOT what DECEDENT lost ● Award amount measured by extent to which decedent’s estate = diminished by premature death ○ i.e. amount that presumably WOULD HAVE = ultimately passed on to estate BUT-FOR wrongful death ● Approach to measuring this - calc what decedent WOULD LIKELY HAVE earned over course of NORMAL lifespan ○ Then subtract from that figure expenses decedent WOULD LIKELY HAVE have incurred (food, housing, clothing, etc.) LOSS OF CONSORTIUM ● MAJORITY allows damages re decedent’s death for NON -pecuniary damages such as loss of:
- Society;
- Love;
- Companionship;
- Protection; &
- Affection (includes sex) ○ These provide equivalent of CL loss of consortium ● GEN brought by decedent’s spouse, BUT SOME statutes allow their kids to recover (read statute to determine who has COA) ● NO PUNITIVE DAMAGES ALLOWED
STRICT LIABILITY
PFC:
- Nature of D’s activity imposes ABSOLUTE duty to make safe;
- i.e. ultra-hazardous activities
- Dangerous aspect of activity = ACTUAL & PROXIMATE cause of P’s injury; &
- P suffered damages to: a. Person; b. Prop; &/or c. Chattel ● Holds Ds liable for their conduct re certain actions that causes P’s harm NO MATTER WHAT ○ D = liable REGARDLESS OF : 1. D’s intent &/or 2. IF D’s conduct = neg ● Purpose - nature of D’s activity is type that CANNOT = made safe NO MATTER how much care = exercised ■ Thus - D must bear responsibility for ANY loss suffered by P - REGARDLESS of fault ○ i.e. D SIMPLY ENGAGING in activity imposes liability ● HOWEVER ONLY = strict liability IF engaging in relevant activity NOT ONLY = cause in fact, BUT ALSO PROXIMATE CAUSE!! of harm P suffered ● Unlike neg - NOT req to prove D’s fault or intention to cause harm ● Applic to:
- Animals ( BOTH wild & domestic);
- Ultra hazardous activities;
- Trespass;
- Conversion; &
- Nuisance
DEFS
- Harm resulted from act of god or intervening acts of 3rd parties;
- KNOWINGLY contributory neg by P; & ● Knowingly contributory neg def req assumption of risk 1) P knew of activity’s danger & 2) His UNREASONABLE conduct subj himself to risk of harm from dangerous activity ● Contributory neg SHORT OF assumption of risk gen ≠ defs - UNLESS P’s neg = cause of injury - NOT ultrahazardous activity
- Comparative neg ( IF in state that allows)
ANIMALS
● Statute spec - depends on state ○ SOME impose strict liability for dog bites
WILD VS. DOMESTICATED ANIMALS
WILD ANIMALS
● “Wild animal” - known to be/classified as dangerous ● Owners of wild animals = strictly liable for ANY injuries caused by animals ● Exception for animals kept in zoo or national park - BUT there must be a warning
● Person who engages in ABNORMALLY DANGEROUS activity = STRICTLY liable for ANY harm caused to person’s: a. Body; b. Prop; c. Or chattel others ○ EVEN IF they exercised UTMOST care to prevent such harm ● This strictly liability = LIMITED to SPEC type of harm that makes activity abnormally dangerous ● EX:
- Drilling for oil ( Green v. General Petroleum );
- Fumigation ( Luthringer v. Moore );
- Gasoline storage ( Bowers v. Wurzburg );
- Fireworks (in SOME juris); &
- Aerial spraying of crops ○ NOT FOR :
- Guns &
- Crashing planes ● Judge determines if activity = ultra-hazardous ○ R2T - 6 factors:
- HIGH degree of risk (probability) of some harm to person, land or chattels of another;
- Harm that would ensue if risk = materialized = GREAT ;
- Such an accident/harm CANNOT = prevented by exercise of REASONABLE care;
- Activity ≠ matter of common usage (carried out by great many vs. select few);
- Activity = inappropriate to place where it = carried on (i.e. activity ≠ appropriate in that setting); &
- Activity’s value to community ≠ OUTWEIGHED by its dangerous attributes ○ R3T - 3 factors:
- Activity creates FORESEEABLE & HIGHLY SIGNIFICANT risk of harm;
- Harm occurs EVEN IF REASONABLE care = exercised; &
- Activity ≠ common
DEFS
● D ≠ strictly liable IF harm in Q results from: a. Natural forces (“acts of god”);
- UNFORESEEABLE intervention by 3rd party/animal (whether acting innocently, neg, or recklessly); or
- P’s KNOWING & UNREASONABLE assumption of risk of harm (i.e. knowingly contributory neg) ● Re harm caused by D’s animal - (R3T) strict liability DOES NOT app IF : a. Person suffers harm due to contact w/ D’s animal or engaging w/ their abnormally dangerous activity FOR THEIR OWN BENEFIT or b. D maintains ownership or possess of animal or carries out dangerous activity due to legal obligation ● IF P CANNOT PREVAIL UNDER STRICT LIABILITY - MIGHT PREVAIL UNDER NEG CASES: ● Rylands ● Spano v. Perini ○ Issue - can person who sustained prop damage caused by blasting on nearby prop maintain action for damages W/OUT showing blaster = neg? ○ Holding - 1 who engages in blasting must assume responsibility - may = liable W/OUT fault for ANY injury he causes to neighboring prop ● Madsen v. East Jordan Irrigation Co. ○ P’s mother mink (weird animal pet) ate their young after being frightened by D’s nearby blasting
○ D ≠ held strictly liable bc possibility that this would occur ≠ EVEN 1 of the secondary risks that enters into decision to impose strict liability for blasting ○ Harm ≠ FORESEEABLE ○ Purposes of strict liability = best served by holding P strictly liable for this kind of harm bc risk NOT ONLY = MORE FORESEEABLE to mink owners, BUT MUCH MORE CONTROLLABLE by them ■ Mink owners = in better position than blasters to make activity-level & research calcs that strict liability induces NUISANCE PFC: ● P can sue D for damages for NON -trespassory invasion of another’s interest in priv use & enjoyment of land IF :
- P has prop rights & privileges in use or enjoyment interfered w/;
- Invasion = SUBSTANTIAL ;
- D’s conduct causes invasion; &
- Invasion = EITHER : a. Intentional & unreasonable; b. Unintentional & otherwise actionable under rule gov liability for neg, recklessness, or ultra-hazardous conduct ● Tort theory that allows P to sue D for D’s interference w/ P’s (right to) use & enjoyment of land ○ Can = brought under theory of intentional, neg, or strict liability torts ● Interference must come from invasion of land, BUT this can = NON-TRADITIONAL PHYSICAL interference like trespass a. Airborne particles (including gasses); b. Noise c. Vibration ● Trespass to land vs. nuisance: a. Trespass = D’s intentional interference w/ P’s exclusive POSSESS of land b. Nuisance = D’s interference w/ P’s USE & ENJOYMENT of land
WHAT CONSTITUTES NUISANCE
● RST - factors re if INTENTIONAL invasion of another’s interest in use & enjoyment of land = UNREASONABLE (PFC element #4) IF :
- Gravity of harm of invasion OUTWEIGHS utility of D’s conduct (that caused invasion) &
- Harm caused by D’s conduct = SERIOUS & financial burden of comp for this & similar harm to others WOULD NOT make continuation of conduct NOT feasible
LOCALITY RULE
● Use of prop in 1 locality & under certain circumstances may = reasonable & thus lawful (i.e. ≠ nuisance) ○ HOWEVER , in another locality could = opposite finding ● Nature of neighborhood may help determine if something = nuisance ○ In organized communities - ppl acc SOME damage, annoyance, & inconvenience from neighbors in exchange for benefits of civilized society
HYPERSENSITIVE P
● IF something bothers ONLY 1 person BUT NOT OTHERS - gen ≠ nuisance ● Obj stdrd for measuring reasonableness of use of 1’s prop - kind of harm that would bother NORMAL person in community under NORMAL circumstances
b. = being built out of spite (purposely to cause such interference) ● HOWEVER, SOME courts = reconsidering this stance due to changing societal values ○ “Spite fences” (built out of spite RATHER THAN utility) which block light/air gen = nuisances ● i.e. fences built w/ SOLE purpose/intention of annoying or injuring adjoining prop owner ■ UNLESS they serve some purpose/function BESIDES causing annoyance CASES: ● Fontainebleau ● Prah
DEFS
REMEDIES
- $ (i.e. damages) ● BUT P HAS DUTY TO MITIGATE DAMAGES
- Permanent injunction ● P CANNOT get injunction when there ENORMOUS disparities btwn possibility of D’s losses as compared w/ P’s injuries
- Temporary injunction
- Purchased injunction ● P stops D from engaging in activity that = nuisance by comp D for loss D incurred by not being able to do that activity anymore
- Conditional injunction ● Court order that prohibits certain actions W/ conditions ○ If these conditions = met - injunction DOES NOT app - OTHERWISE it remains in force ○ Allows D to take some time to resolve nuisance situation
- Abatement ● Removal/termination/destruction of something that has = found to be = nuisance ○ EX: P cuts D’s tree roots VICARIOUS LIABILITY ● Doctrine of “ respondeat superior ”- party (principal) = responsible for acts of their agents bc of SPECIAL relationship ○ Imposes liability on individual for wrongs of another bc of some special connection or relationship btwn principal/agent a. Employer/emp b. Partners/joint ventures c. Parent/child ● Acc concept in ALL CL juris ● NO punitive damages bc once injured P = comp - punitive damages serve NO purpose against principal (gen employer) who DID NOT ACTUALLY COMMIT/CAUSE injury/harm
EMP SETTING
● Exists for torts committed by emp WHILE W/IN SCOPE of his emp
● Employer allowed to seek indemnification from emp (i.e. if employer = held liable for P’s injuries that resulted from emp’s wrongful actions - employer can make emp liable & comp P damages) ○ Can also = vice versa (e.g. emp liable bc P harmed from emp’s act which emp = wrongfully tasked to do by employer) ● Injured party (P) can sue BOTH emp & employer ○ Thus injured P WILL NOT face insolvent party (employer can seek indemnity)
EXCEPTIONS
INDEPENDENT CONTRACTORS
● Gen - employer ≠ liable for actions of IC bc employer ONLY controls RESULT of work (i.e. hiring them to make bathroom look spec way) - NOT spec details of HOW it's done ○ IC = employer ≠ able to control hours, schedule, & manner & method of perform work (employer reserves ONLY control as to RESULTS of K) ● BUT , contractors must TRULY = INDEPENDENT - NOT just emp classified/labeled as IC ● Exception - when actor hires IC to do ABNORMALLY DANGEROUS work (i.e. ultrahazardous activity) ■ EX: dynamite blasting ○ Then - employer = vicariously liable Auth Doctrines ● Exception where vicarious liability may = imposed for actions of IC where agency relationship = established under either doctrines of: a. Apparent authority or
- Principal (employer) = bound (could = held liable) for NOT ONLY auth EXPLICITLY given to IC BUT ALSO auth principal APPEARS to give ( Gilbert ) b. Implied authority
- Agent retains right to control aspects of work BEYOND what = typical for IC
- e.g. control over finances, referrals, or utilization review
- IF agent exercises such control - may imply CLOSER relationship w/ principal than that of typical IC CASES ● Gilbert v. Sycamore ○ Hosp = vicariously liable for med mal of emergency room dr who = IC bc hosp presented dr as their emp which led P to reasonably believe so ■ i.e. P justifiably relied on this hosp’s word
FROLIC & DETOUR
● Employers gen ≠ liable for tortious conduct by their emps IF conduct = SIGNIFICANT deviation from their emp duties ○ i.e. SIGNIFICANTLY BEYOND scope of emp’s emp ● SMALL deviations (AKA “frolic & detours”) may still = covered under employer's liability ● Exception = neg hiring - employer - liable EVEN IF emp = acting OUTSIDE scope of emp IF employer fails to:
- Supervise;
- Train; &
- Maintain personnel CASES: ● Schechter v. Merchant Home Delivery ○ Drivers & repair persons who enter person’s home must = vetted BEFORE hiring (emp had crim record for burglary)
PRODUCTS LIABILITY
MANUFACTURING DEFECT
PFC:
- D = commercial seller;
- D has ABSOLUTE duty to make product safely;
- In spite of ALL POSSIBLE care - D manufactures DEFECTIVE product; ● i.e. product that DEPARTS from its INTENDED use
- Actual and proximate causation; &
- damages ● STRICT LIABILITY!!
DEFS
DESIGN DEFECT
PFC:
- D = commercial seller;
- D owes P duty of due care;
- D breached that duty; ● Demonstrated by EITHER : a. Risk utility test or b. Consumer expectations test
- Actual and proximate cause; &
- Damages ● NEG!!
INADEQUATE WARNINGS/FAILURE TO WARN
PFC:
- D = commercial seller;
- D owes P duty of due care;
- D breached this duty by providing INADEQUATE warning;
- Actual and proximate cause; &
- Damages ● NEG!!
DEFS
● ONLY DEFS = comparative neg by P ● Includes - ALL conduct by P:
- Contributory neg;
- Assumption of risk;
- Product misuse; &
- Product alteration ●
