PA 165 PA 165 Introduction to TortsIntroduction to Torts

Unit 6Unit 6

Lecture 1Lecture 1

Midterm Exam Follow Up

Review on Monday, October 3: Unit 6 Lecture 2

Unit 6 Graded Items

Lecture 1 (10 points)

Lecture 2 (10 points)Quiz (40 points)Discussion (20 points)Memorandum (100 points)

Deadline for Unit 6: 11:59 PM ET, Tuesday, Oct. 4

Special Negligence Actions/Defenses

Outline: Review Negligence ElementsPremises LiabilityVicarious LiabilityNegligence Per seAffirmative Defenses Unit 6 Memorandum

Negligence Elements

DutyBreachCausationDamages

Premises Liability

Owners and occupiers of land have a special duty under negligence.

Owners and occupiers include a property owners or renters.

Premises Liability

Three categories of entrants on land:

1. Trespassers2. Licensees (social guests)3. Invitees (guests for business

purpose)

Trespassers

No duty of care owed to make the land safe or protect the trespasser.

Possessors of land cannot willfully or intentionally injure a trespasser (e.g. spring loaded guns).

Attractive Nuisance

If a person keeps dangerous property in a way that children might be attracted to it and be able to get at it, then that person is responsible even if the children are trespassing or at fault when they get hurt.

See Bennett v. Stanley, 748 N.E.2d 41 (2001) on pages 63-64 in chapter 3 in the course text.

Licensees

Licensees: social guests who have possessor’s consent to be on the land, but do not have a business purpose for being there.  

Duty to warn the licensee of dangerous conditions and should reasonably anticipate that the licensee would not discover it.  

Invitees

Invitees: invited on land for business purpose (e.g. customers at retail store)

Land owner/occupier owes duty of reasonable care to discover and correct unknown dangers on premises.

Vicarious liability

Liability of the principal (such as an employer) for the tortious actions of an “agent” (such as an employee).

No vicarious liability to independent contactors

independent contract/employee test: focus on control

Respondeat Superior

respondeat superior (Latin) “Let the master answer.” Describes the principle that an employer is responsible for most harm caused by an employee acting within the scope of employment.

Scope of Employment

scope of employment: The range of actions within which an employee is considered to be doing work for the employer.

Frolic and Detour Rule

Conduct of an employee that falls outside of the scope of employment that is purely for the benefit of said employee.

An employer is not responsible for the negligence of an employee on a “frolic of his/her own.”

Coming and Going Rule

Rule used when employees commit torts while coming to or going from work. In respondeat superior cases, this rule helps decide whether an employee’s actions fall outside the scope of employment.

Negligence Per Senegligence per se: violation of duty of care

established by law (presumed negligence)

Elements: violation of an applicable statute causal link between the act and the plaintiff’s injury being a member of the protected class damages result

Common with violations of health and safety codes

Negligence Per Se ExampleBarfly Beer Company sells “Brewster’s Choice.”

Barley Brothers Emporium, sells the product in town. A state health statute requires any manufacturer or seller of items for human consumption to distribute them in containers free from foreign substances. Barley collected empty bottles to send back to Barfly to be cleaned and reused. Sometimes, drinkers would put cigarette butts into the bottles. Neither Barley nor Barfly checked the bottles for foreign substances; they were simply sent back to the Barfly plant, refilled, and redistributed.

Leigh Ann drank one of the beers from a bottle with a cigarette butt floating in the bottom. As one might imagine, Leigh Ann became physically ill as a result. Aside from the clear products liability issue, has Barfly or Barley been negligent per se? The health statute was intended to protect consumers like Leigh Ann from injuries caused by foreign objects floating inside beverage bottles. Barfly and Barley each violated the statute. Their negligence may be presumed.

Affirmative Defenses to Negligence

contributory negligence (comparative negligence or comparative fault)

assumption of the risk statute of limitations mistake

Assumption of Risk

Knowingly and willingly exposing yourself (or your property) to the possibility of harm

Example: Participants in hazardous activities (amusement parks)

Unit 6 MemorandumConduct research on LexisNexis (accessible via the Kaplan University Library) based on the following hypothetical.

To access LexisNexis, go the main classroom environment where you see your list of courses and follow the steps below:

• Click on “Library” •

See LexisNexis Tutorial in Webliography at: http://www.screencast.com/t/Rq5XSJcbJV2i

Unit 6 Memorandum

John Stokely is a sales executive for AAA Auto Dealers, a local automobile dealership. He often drives to the manufacturing facility, which is 150 miles from the dealership, to check on new orders. John’s employer reimburses him for gasoline, food, and lodging, and provides John with a dealer car to drive. While driving to the manufacturing plant, John decided to stop by his cousin’s house for dinner. His boss accompanied him on the visit “to get a decent meal for a change.” While on the way there, John collided with and injured a motorcyclist. Is AAA Auto Dealers liable for John’s negligence?

Unit 6 Memorandum

Research the legal issues surrounding vicarious liability of employers and respondeat superior. You should also research the coming and going rule along with frolic and detour rules for vicarious liability.

Reference both primary sources and secondary sources in your research. Examples of primary sources include cases, statutes, constitutional provisions, and regulations. Examples of secondary sources including law reviews and journals, treatises, Restatements, dictionaries, and the Restatement of Torts.

Unit 6 Memorandum

Part One: Research Log

For Part One of the assignment, answer the questions below about the research you conducted.

1. What primary sources did you use? 2. What secondary sources did your use? 3. What search terms did you use for each search? 4. What search method did you use (Terms & Connectors,

Natural Language, and/or Easy Search)?

Unit 6 Memorandum

Part Two: Analysis

After conducting research, discuss in a memorandum to your instructor whether AAA Auto Dealers liable for John’s negligence. The memorandum should be 1-2 pages in length using 12 point Times New Roman font, double-spaced lines, and one-inch margins. Make sure to cite your sources using APA and Bluebook citation format. The document should be in a Microsoft Word 2003 or 2007 (or 2010) file format.

Submit your Memorandum to the Dropbox by the end of Unit 6.

Unit 6 Memorandum

Abbreviated Grading Rubric (full rubric in Doc Sharing)

Content (70%): 70 pointsSpelling and Grammar (5%): 5 pointsFormat (5%): 5 pointsStyle and Coherence (10%): 10 pointsOrganization (10%): 10 points

Total: 100 poionts