Defenses & Immunities
What are the 4 defenses?
Contributory Negligence, Comparative Fault, Express Assumption of Risk, Implied Assumption of Risk
What are the 2 elements of Vicarious Liability?
To assert VL, a plaintiff must show that there was an
(1) employer-employee relationship and that
(2) the employee must be acting within the scope of employment at the time of the incident.
What are the 3 categories of animals for which an owner can be strictly liable for?
Livestock, Wild Animals, and Abnormally Dangerous Animals
Which of the following is NOT an abnormally dangerous activity?
(a) Fumigating
(b) Blasting
(c) Cooking with really sharp knives
(d) Storage of flammable liquids and explosives
(c) Cooking with really sharp knives
What are the 3 kinds of defects?
Manufacturing, Design, Warning
What is Governmental Immunity?
???
What's the difference between a Detour and a Frolic and when would an employer be liable?
Frolic is generally “pursuit of employee’s personal business [which is] seen as unrelated to employment.” (hence, employee is considered to have acted outside scope of employment)
Detour is generally “an employee’s deviation for personal reasons that is nonetheless seen as sufficiently related to employment.” (hence, employee is considered to have acted within scope of employment)
Employer is liable for a detour.
What is the Temporary Custody Exception?
Individuals with temporary custody of an animal cannot be held strictly liable for the harm caused by the animal (even if they have knowledge.)
Which out of the following do you NOT consider when analyzing strict liability - activities?
(a) existence of high degree of risk
(b) location of the activity in which it is carried
(c) value to the community of the activity
(d) the ability and expertise of the individual(s) carrying out the activity
(d) the ability and expertise of the individual(s) carrying out the activity
Jane was injured when a hair dryer that she purchased from ABC Corporation caught on fire. She was using it normally. Why would ABC be held liable for the defective hair dryer according to the strict liability theory of product liability?
The hair dryer that Jane purchased was defective, unreasonably dangerous, and caused injury to the consumer.
In order to raise a defense of implied assumption of a risk, a defendant must show that plaintiff
(1) Had knowledge of the risk
(2) Appreciated the risk, and
(3) Voluntarily exposed himself to that risk.
What is the Going and Coming Rule?
Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment…[unless] caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers’ purposes rather than simply serving to convey the employees to or from a regular job site.
Which of the following is NOT an abnormally dangerous animal?
(a) My cousin's hamster that bites people
(b) My neighbor's snake that bites people
(c) Dog that jumps on people and injures them
(d) Dog that has bitten someone once
(b) My neighbor's snake that bites people
Glenn is being sued on a theory of strict liability for engaging in an abnormally dangerous activity. He argues that he took all proper precautions in crop dusting his fields. Will that relieve him of liability?
Nope. Ordinary activities can usually be made entirely safe by taking all the reasonable precautions, but when safety cannot be attained by the exercise of due care, the activity might be an abnormally dangerous one. Here, even if he exercised due care, he cannot eliminate the abnormal risk that crop dusting poses.
A is the manufacturer, B is the distributor, C is the store that stocked a defective product. We know for sure the defect originated with B. Who can P sue?
B and C.
A court determined that P is 60% at fault, and D is 40% at fault. In a 50% bar jurisdiction, can P recover?
Nope!
Employers are not liable for independent contracts except for 2 exceptions. What are the 2?
The exception to this independent contractor rule is that the hiring party can be held vicariously liable for activities that are “inherently dangerous” and activities that courts or statutes declare as “non-delegable” duties.
There are two exceptions to strict liability for animals that trespass on land. What are they?
Animals that stray onto highways and animals that stray when driven.
There are two limitations on strict liability. What are they?
Strict liability does not apply if:
(1) the person suffers physical or emotional harm as a result of making contact with or coming into proximity to the defendant’s animal or abnormally dangerous activity for the purpose of securing some benefit from that contact or proximity; OR
(2) The defendant maintains ownership or possession of the animal or carries on the abnormally dangerous activity in pursuance to an obligation imposed by law.
Think back to the medieval jousting case. Even if the snowplow could have been removed more easily has some changes been made, what causation issue would the P have run into?
They would have to prove that the employees would have removed the snowplow thing if it was easier to remove.
What are the 3 kinds of Comparative Fault Jurisdictions (with explanations)?
Pure JX - the % P is not at fault, that is the amount P gets.
49% Bar - P is denied recovery if fault is as great as D's.
50% Bar - P is denied recovery if fault is greater than D's.
John is driving to work one day in Orange when his boss calls him up and asks him to stop by the Anaheim office to pick up some papers. As John is heading there, he decides to stop by the bank to make a few deposits he had been putting off. After he's done at the bank, he gets into his car to head to Anaheim. Right when he leaves the parking lot, he rear ends Sherry. What are all the rule statements that apply here?
Vicarious Liability, Coming and Going Rule, Frolic vs. Detour
Maria is visiting a farm to get some fresh cream when she passes by the chickens. As she leans down, a chicken bites her and takes a chunk out of her arm. Which rule would she use to establish liability?
Abnormally Dangerous Animal. Strict Liability for livestock only applies when the animal intrudes on land and causes harm, NOT when it bites or attacks someone.
Darla was in the pest control business and produced fumigation gas to sell to consumers. She unknowingly produced highly toxic gas, which she then sold to Albert. Paul, who was Albert's neighbor, suffered sever lung damage as a result of Albert's negligent use. Is Darla strictly liable? Bonus: what is the causation issue?
Darla is strictly liable because producing fumigation gas is an abnormally dangerous activity with a high risk of harm, the harm will be great, there is inability to eliminate the risk, the activity is not common, and the utility of such is less than the risk.
Causation: Darla can argue that she is not the proximate cause because Albert's negligence was an superseding intervening cause. Paul could argue that Albert's negligence was foreseeable.
What are the 4 things to consider in determining whether a warning is inadequate or not?
(1) Content/Explicitness
(2) Comprehensibility and clarity
(3) Intensity of expression, conspicuousness, and means used to warn
(4) Characteristics of expected user group