Torts
Class Notes
Lots
of multiple choice and one essay question.
On
Monday, go to the auditorium for class.
Turn in one report per group, due Friday at
Abnormally
dangerous activities are unusual and usually involve great danger. There are three factors that restate the B
< pL test. Is it really
dangerous? It is unjustifiably dangerous? Is it common to the area? Is it being done in the wrong place? Does the activity has value to the community?
Why
do we have vicarious liability?
Employers might reduce the number of accidents if held liable. We want to spread the costs of the
plaintiff’s harm through the community.
The employer has control of the employee and arguably should be liable
for the tort. Also, the employer has
deeper pockets than the employee.
What’s
within the scope of employment? If the
employer tells the employee to do something safely and fails to do so, but it’s
in the scope of employment, the employer may be held liable. If a cook is flipping a knife and talking
with a customer, injuring that customer, that’s within the cook’s scope of
employment. It’s a factual question for
a jury.
What
about intentional torts on the job?
Unless the intentional tort is within the scope of that individual’s
employment (a bouncer or security guard), the employer isn’t responsible. These torts are not seen as furthering the
interests of the employer.
We
also won’t impose vicarious liability in the situation where an employee abuses
his power as conferred by the employer.
It depends on how far outside the scope of employment the employee
goes. Some courts will say that if the
employer created the power that is abused by the employee, the employer may be
responsible. So there’s a split.
There
are a few factors that may be considered when you’re figuring out whether an
employer should be vicariously liable:
1. It is of the
kind he is employed to perform.
2. It occurs
substantially within the authorized time and space limits.
3. It is
actuated, at least in part, by a purpose to serve the employer.
4. If force is
intentionally used by the servant, the use of force is not unexpected by the
master. That is, intentional torts are
typically not covered.
Independent
contractors are different from employees.
It is favorable to get your employees described as independent
contractors for various reasons.
Vicarious liability only applies to employees and not independent
contractors. How do you know who’s an
independent contractor? It’s a factored
test. You look at the Restatement
factors and weigh whether, on balance, the person is more like an independent
contractor or more like an employee. The
main factor is control: how much control does the employer have over the
person? The more control they have, the
more likely we’ll find that the person is an employee.
Here
are the rules:
1. How much
control does the employer have over the details of the work?
2. Is the actor
engaged in a distinct occupation or business?
3. Does the
employer have to supervise?
4. Who supplies
the tools and place of work?
5. How long is
the person employed?
6. Are they paid
by the hour or to do a particular job until complete?
7. How do the
parties understand the relationship?
Goertz
and Murrell got in an argument when Goertz was making collections for the
newspaper. Goertz slapped Murrell. Is the newspaper responsible for the injury
caused to Murrell?
What
degree of control does the newspaper have over Goertz? The court finds it persuasive that Goertz was
hired by another contractor rather than the employer themselves. The publishing company doesn’t even know
Goertz works for them. Even though they
provide the paper and the rubber bands and the route, they appear not to have
much control over Goertz.
Say
you take your car into the dealership because it has a paint chip. The dealer calls you and says they’re sending
someone to your house to repair the paint chip.
That person negligently repairs your car and causes damage. How do I figure out whether the person who
comes is an independent contractor or an employee?
Maloney
v. Rath
When
you take your car to the mechanic and they don’t fix your brakes right, how come
you are liable? The court says that the
duty to keep up your car is non-delegable.
Negotiation
Lawyers
negotiate a lot. You negotiate
everything. Even if you don’t do ADR,
you negotiate. A typical litigator is
involved much more frequently in negotiation than litigation.
There
are three basic styles of negotiation:
1. Adversarial
Negotiation
2. Problem-Solving
Negotiation
3. Conditional
Problem-Solving Negotiation
Today,
most lawyers will describe themselves as problem-solving negotiators rather
than adversarial negotiators. However,
problem-solving negotiators can get hurt by adversarial negotiators.
Classic
adversarial negotiation
·
Misleading
·
Overstating
·
High Demand
·
Hide Information
·
Few Concessions
·
Apparent Commitment to Positions
·
Use of Threats/Anger
·
Control of Process
Many
of these tactics will end in failed negotiations.
Problem-solving
negotiation
·
Interests not positions
·
Invent options for mutual gain
·
Use objective criteria
·
Look at the problem, not the people
·
Consider BATNA
What
do the parties really want? Do they need
money, and if so, what for? It’s hard to
find interests to shift around in torts cases.
Are there other things that could compensate the plaintiff other than
the payment of money? Are there things
the plaintiff wants that the defendant could provide?
Can
you figure out after talking to the other side what they might want? Is there a win-win?
Don’t
let the people get in the way of solving the problem. Sometimes, lawyers can be part of the
problem.
BATNA
is “best alternative to a negotiated agreement”. If the negotiations fail, what happens? Will I win in court? How much will it cost to litigate? What are the probabilities of winning or
losing?
Preparation
for negotiation
·
Consider the client’s interests and priorities
·
Research the other side’s interests and priorities
·
Identify each client’s bottom line and intermediate
positions
·
Anticipate the other side’s bottom line
·
Anticipate what negotiation approaches the other
side will use
·
Decide which negotiation strategy to use
·
What info will you seek to obtain and how?
·
What info will you disclose and when?
·
What will be your opening position? When will you communicate it? What interests does it advance?
·
How will you defend your opening offer?
·
What counter-arguments do you expect?
·
What will be your concessions? How big will they be?
·
What are your principles for making concessions and
not going further?
·
What is your BATNA?
·
What is the other side’s BATNA?