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Winnin' Time! - Excerpt

Please note: This text is Copyright 2011 by Steven Harris.  Please do not copy or distribute.  Order Winnin' Time! here.

FOREST FOR THE TREES: Vickie Can’t Defend My Greed

I. Vicarious liability

  1. Causes of Action – SPIN MD strict liability, products liability, intentional torts, negligence, malicious prosecution/abuse of process, defamation
  2. Defenses
  3. Miscellaneous Torts
  4. General Considerations

How do they test this stuff?

  • Malicious prosecution/abuse of process
  • Products liability (sometimes with strict liability)
  • Defamation/Privacy Torts
  • Negligence

Intentional torts are generally lumped in with negligence but rarely include an entire question to them. Mal pro/abuse of process are never the only two issues in an exam question (e.g., defamation included or some other issues)

How often have these types been tested since 1993?

2/93 – negligence - (PR cross-over)

7/93 – negligence/int’l torts

7/95 – mal pro/abuse of process/false imp/defamation

2/97 – products liability

2/98 – tortuous interference with K; injunction; (K/torts/rems (torts was the cross-over))

7/98 – negligence

2/00 – defamation (PR cross-over)

7/00 – negligence (remedies cross-over, but traditional damages – actual/nominal/punitive)

7/01 – mal pro/abuse of process/defamation (PR cross-over)

7/02 – products liability

7/03 – defamation/privacy torts

7/04 – negligence

2/06 – products liability

7/06 – negligence/false imprisonment/respondeat superior

7/07 – products liability


  • 3 torts/PR cross-overs, more typically with defamation

  • Defamation not tested ’03-’07; mal pro/abuse of process not tested ’01-’07.


Clustered issues in Torts:

  • contributory neg/comparative neg/assumption of the risk

  • privacy torts: misappropriation, private facts, intrusion, false light

  • products liability: strict products/express warranty/misrep/implied warranty/neg

  • nuisance: public nuisance/private nuisance

  • mal pro/abuse of process/(now – anti-SLAPP motion??)


I. Vicarious liability

Mnenomic: RIP Hiring

Respondeat superior requires employer liability for employees’ torts occurring within the scope of employment. Employers are not liable for employees’ intentional torts.

Vicarious liability requires that independent contractors are not vicariously liable for the acts of their subordinates, unless the conduct is an inherently dangerous activity or is one that cannot be delegable. [NOTE: consider suit against employer for negligent hiring of independent k’or]

Vicarious liability requires that parents are not vicariously liable for the acts of their children, but most states have statutes creating liability for parents for intentional torts of their minor children. [NOTE: parents can be liable for negligence if they don’t take proper precautions to prevent harm]

Negligent hiring requires an employer to know or should know about an employee's background which, if known, indicates a dangerous or untrustworthy character.  


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