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Issue Checklist With Definitions Outline

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This is an extract of our Issue Checklist With Definitions document, which we sell as part of our Torts II Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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ISSUE ANALYSIS CHECKLIST W/DEFINITIONS STRICT LIABILITY o *Defendant is engaged in legal conduct, acting without fault, but is liable because he/she caused harm for policy reasons. 1) Animals a. Trespassory Harm i. S/L for barnyard animals that stray and are likely to do harm when they trespass. b. Non-Trespassory Harm i. No S/L unless owner has scienter about unusual dangerous propensity of animal. c. Limitations i. Owner is only strictly liable if the harm is the result of the dangerous propensity of the animal. 2) Abnormally Dangerous Activities a. S/L requires those who engage in dangerous activities to bear the accident costs. b. Rylands i. D is strictly liable when he causes damages by a thing or activity which is dangerous and inappropriate to its location, in light of the surrounding locale. c. 1st RST. i. Focuses on whether the activity is ultra-hazardous. d.

2nd RST. i. Determine if activity abnormally dangerous.

e. Limitations i. D is S/L only for consequences which result from the hazardous aspect of the activity.

VICARIOUS LIABILITY o *Type of strict liability that imposes liability on the employer without fault for the torts of the employee o *Vicarious Liability imputes liability for the tortious conduct of one party to another, because of some relationship between the parties. The most common relationship is employer/employee relationships, where the employer is held vicariously liable for the tortious conduct of his/her employee, when the tort occurs within the scope of employment. 1) Scope of Employment a. *Whether the conduct was so closely connected to the what the actor was hired to do as part of the enterprise that it is fairly regarded as a risk of the business b. Right of Control Test i.

Conduct is within the scope of employment if it is subject to a right of control by the party to be held vicariously liable

c. Benefit to Enterprise Test i.

Even in the absence of a right of control, enterprise is vicariously liable if the employee's conduct would have benefited the enterprise

2) Independent Contractors a. Employers are not usually held liable for independent contractors, because the independent contractor is considered to be its own enterprise. As a separate business enterprise, the independent contractor sets work requirements, has insurance, and has a means to distribute losses related to its own enterprise. However, when one who employs an independent contractor exercises significant control over the independent contractor, the courts may impose vicarious liability on the employer based on the extensive control as though the independent contractor were an employee.

MISREPRESENTATION o *Misrepresentation describes a situation where a misstatement causes intangible pecuniary loss o To be successful in an action for misrepresentation, P must prove D's false representation of a material fact, with an appropriate basis for liability (intent, negligence, or strict liability), that D intended to induce P's reliance, that P justifiably relied and suffered pecuniary loss as a result. 1) False Statement of Material Fact a. A material fact is one that is basic to the transaction at hand 2) Basis of Liability a. Fraud i. Scienter is the basis of liability for fraud. Scienter can be proved if the defendant knew the statement was false, recklessly failed to determine the falsity, or made the statement without belief in its truth. b. Negligent Misrepresentation i. The D was negligent in failing to determine truth when there is a duty owed to the P. ii. Careless and acting with disregard. c. Strict Liability i. D is innocent and did not deliberately lie or act carelessly. 3) Indented to Induce Reliance a. The test applied depends upon whether D's conduct in was done by fraud or negligence. If found to be fraud (scienter), the D will be liable to a class of persons whom the D had reason to expect would rely. If found to be negligent, the class of persons is limited to a small class whom D expected to rely and then made its representation with that reliance in mind. 4) Justifiable Reliance a. The test to determine justifiability is an objective test based on the subjective characteristics of the P - that is, whether a reasonable person with P's experience, education, intelligence would rely. P must show he in fact relied on the misrepresentation and that his reliance was justifiable. P must show that the fact he relied on was material to the underlying transaction 5) Damages a. In order to recover damages the plaintiff must have suffered an economic loss. b. Benefit of the Bargain i. Difference between that value of what P got and what P would have gotten had the representation been true c. Out of Pocket

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