1. Tort Law –Defenses to Negligence PA310 Wednesdays 8 PM EST “Do not take if allergic to aspirin.” - Bayer Aspirin

2. Negligence Actions Actions for Negligence Premises Liability Vicarious Liability Negligent Infliction of Emotional Distress Negligence Per Se

3. Negligence Actions Premises Liability ▫Special negligence rules that apply to owners and occupiers of land. ▫occupier † An individual who does not own but who uses real estate, including tenants ▫(lessees).

4. Negligence Actions Vicarious liability The liability of one person, called the principal, for the tortious conduct of another, subordinate individual, called the agent, who was acting on the principal’s behalf.

5. Negligence Actions Vicarious liability The liability of one person, called the principal, for the tortious conduct of another, subordinate individual, called the agent, who was acting on the principal’s behalf. Common example: Employer / Employee

6. Negligence Actions Vicarious liability Important Concept: Respondeat Superior The employer is responsible for the negligence (or, for that matter, any torts) that his or her employees commit while working. “Let the master answer.”

7. Negligence Actions Vicarious liability Important Concept: Scope of employment The range of conduct that the employer expects the employee to perform as part of his or her job. EXAMPLE: A truck driver is expected to make deliveries and pickups for the employer; these actions fall within the scope of employment. NOT Scope: But the driver is not expected to rob a liquor store while driving the company truck; this action falls outside the scope of employment.

8. Negligence Actions Vicarious liability Important Concept: Coming and Going Rule Employers are usually not vicariously liable for the negligence of their employees while the employees are coming to or going from work.

9. Negligence Actions Vicarious liability Important Concept: Frolic and Detour Rules Employers are not vicariously liable for the negligence of their employees when employees go off on their own to handle personal matters, even though they might be performing work otherwise. What do you think? Suppose that, while making deliveries for the employer, the truck driver decided to drive 180 miles to stop by and visit a friend in the next state. If the driver were negligent while detouring, Employer vicariously liable?

10. Negligence Actions Vicarious liability Important Concept: Independent Contractors Independent contractors are distinguishable from employees in that the employer does not control how an independent contractor does the job.

11. Defense to Negligence Contributory Negligence and Last Clear Chance Comparative Negligence Assumption of Risk Statutes of Limitations

12. Defense to Negligence Contributory Negligence The plaintiff’s own negligence that contributed to his or her injuries. Elements of contributory negligence include duty, breach, causation, and injury.

13. Defense to Negligence Contributory Negligence Important concept: Last clear chance theory Although the plaintiff was contributorily negligent in causing his or her own injuries, the defendant had the last opportunity to avert harm and failed to do so; therefore, the plaintiff can still recover

14. Defense to Negligence Contributory Negligence Important concept: Common Law Rule 99 percent and 1 Rule

15. Defense to Negligence Comparative negligence Measurement and comparison of the plaintiff’s and the defendant’s negligence in causing the plaintiff ’s injuries. Has replaced contributory negligence in most states’ common law or statutes

16. Defense to Negligence Comparative negligence three elements: 1. The plaintiff was negligent in contributing to his or her own injuries. 2. Calculation of the percentage of the plaintiff ’s negligence that contributed to his or her injuries. 3. Calculation of the percentage of the defendant’s negligence that produced the plaintiff ’s injuries. In some jurisdictions, a fourth element is included: the defendant must have been more negligent than the plaintiff.

17. Defense to Negligence Assumption of Risk The plaintiff assumed the risk of doing (or not doing) something that resulted in his or her injuries. ELEMENTS (1) the plaintiff ’s voluntary assumption of a known risk (2) with a full appreciation of the dangers involved in facing that risk. It is important to note that not all risks are assumed; just those that are reasonable.