Torts Final Exam

A person acts with intent if they act with the purpose of producing a consequence or knowing the consequence is substantially certain to result.

The intent to cause contact, where that contact ends up being harmful or offensive to the plaintiff.

The intent to cause contact that the defendant intended or knew was substantially certain to be harmful or offensive.

When the defendant commits a different tort than intended or commits a tort against a different person than intended.

If all elements of the tort are met, the defendant is liable for all consequences, even unforeseeable or unintended ones.

The actor must intend to cause the other person, directly or indirectly, to come into contact with a foreign substance.

Putting something in motion or contacting something connected to the plaintiff’s body, which can be sufficient to establish contact.

Yes, it extends to anything intimately attached or practically identified with the person.

No, the plaintiff’s awareness of the contact is not necessary.

Contact is harmful if it causes physical injury.

Contact is offensive if it offends a reasonable sense of personal dignity.

Battery involves harmful or offensive contact, while assault involves the apprehension of imminent harmful or offensive contact.

The right to be free from the apprehension of harmful or offensive contact.

No, lack of fear does not negate liability for assault.

The reasonable person standard.

Imminent means "right now" or "in the next few seconds."

Assault occurs when the defendant acts intending to cause imminent apprehension of harmful or offensive contact, and such apprehension occurs in the plaintiff.

No, words alone are not enough; they must be accompanied by actions or circumstances.

If someone intends to commit battery but only causes apprehension, the intent to batter can transfer to fulfill the intent element of assault.

Apprehension is the expectation that harmful or offensive contact will occur if no other action is taken.

A threat that causes apprehension of imminent harm or offensive contact, even if escape is possible by obeying a command.

No, assault requires an expectation of contact, not fear.

Yes, the plaintiff must be aware; an attempt abandoned or frustrated before awareness does not constitute assault.

(1) The defendant acts with intent to confine another, (2) their actions directly or indirectly result in confinement, and (3) the other is aware of the confinement or harmed by it.

The defendant acts with the purpose of confining another or is substantially certain their act will result in confinement.

Yes, transferred intent can apply to false imprisonment.

Physical barriers, physical force, and threats of physical force.

When the plaintiff cannot escape without unreasonable danger, serious risk of embarrassment, or discomfort.

When physical force restrains the plaintiff, or the plaintiff submits to physical force without further restraint.

Submission to a threat of immediate physical force against the plaintiff or others if they attempt to leave the area of confinement.

No, threats of economic retaliation or loss of employment are not enough for confinement.

If the plaintiff mistakenly believes they are confined and the mistake is reasonable, and the defendant intended for the plaintiff to believe they were confined, confinement is satisfied.

The plaintiff must be aware of the confinement or harmed by it.

The privilege allows a shopkeeper to detain someone reasonably suspected of theft in a reasonable manner and for a reasonable time to investigate and recover stolen items.

The privilege ends after the merchandise is recovered and cannot be used for prolonged detention beyond investigation and recovery.

(1) Extreme or outrageous conduct by the defendant, (2) intent to cause severe emotional distress or reckless disregard of the likelihood of such distress, and (3) severe emotional distress suffered by the plaintiff.

Conduct that goes beyond the bounds of decency; it must be more than rude or offensive behavior.

No, the plaintiff would sue for the tort causing the injury or harm (e.g., battery, negligence) and seek damages for resulting emotional distress.

The defendant must have acted with intent to cause severe emotional distress or with reckless disregard of the likelihood of such distress.

Purpose intent, knowledge intent, or recklessness.

The emotional distress must be severe and substantial or enduring.

No, some jurisdictions no longer require physical manifestations, but others still do. Check jurisdiction requirements.

(1) Intentionally entering another’s land or causing a thing or third person to do so, (2) remaining on the land, or (3) failing to remove something placed on the land.

No, an actor is still liable for trespass even if they mistakenly believe they are allowed to be on the land.

Yes, trespass includes below-ground areas such as tunnels, caves, wires, or cables.

No, an actor is liable for trespass even if no harm is caused to the land.

(1) Believing they own the land, (2) believing they have consent, or (3) believing they have another privilege to enter.

If the true possessor induced the actor's reasonable mistake, the actor may not be liable.

A complete defense where the defendant is privileged to interfere with property to avert an imminent public disaster and is not liable for damages.

An incomplete defense where the trespass is privileged to prevent serious harm, but the defendant may still be liable for damages caused.

Interfering with another’s property to prevent serious harm to (1) the actor, their land, or chattels, or (2) another person, their land, or chattels.

(1) Intentionally exercising dominion or control, OR (2) altering or destroying another’s property so seriously as to warrant payment of the full chattel.

Extent and duration of control, intent to assert a right inconsistent with the owner’s right, good faith, harm to the chattel, and inconvenience or expense to the plaintiff.

The full value of the chattel.

Yes, public necessity is a complete defense, and the defendant is not liable for damages if they acted to avert an imminent public disaster.

An incomplete defense where the interference is privileged to prevent serious harm, but the defendant may still be liable for damages.

Interfering with another’s property to prevent serious harm to (1) the actor, their land, or chattels, or (2) another person, their land, or chattels.

(1) Intentional intermeddling with another’s personal property, OR (2) dispossessing another of their personal property.

When the defendant impairs its condition, deprives the plaintiff of using it for a substantial time, or harms the plaintiff or their interest in the chattel.

Intentionally preventing the plaintiff from accessing the chattel by taking it or barring access to it.

Conversion involves serious interference and requires payment of the full value, while trespass to chattels involves less serious interference and does not require full value payment.

Replevin, a court action to recover the specific item.

Less serious interferences or damages that do not satisfy the elements of conversion.

Yes, public necessity is a complete defense where the defendant is not liable for damages.

An incomplete defense where interference is privileged to prevent serious harm, but the defendant may still be liable for damages.

When it is necessary to prevent serious harm to the actor, their property, another person, or their property.

Willingness in fact for conduct to occur, manifested by action or inaction; does not need to be communicated to the actor; express or implied actual consent. (Rest. 2d § 892)

If words, silence, conduct, or inaction would be understood by a reasonable person as consent, they constitute apparent consent and are as effective as actual consent.

Consent applies to intentional torts, including property torts.

If the plaintiff consents to an intentional tort, the defendant is not liable.

The defendant may be liable if there was (1) a substantial mistake, (2) about the essential character of the act, (3) known to or induced by the defendant.

Express actual consent occurs when the plaintiff is willing to permit the conduct that occurs.

Implied actual consent is inferred from the plaintiff's actions, such as participating in an activity like playing rugby.

Consent is presumed by law in emergencies when the person is unconscious or incapacitated, but no consent exists if the person explicitly denies it.

A substantial mistake occurs when the plaintiff misunderstands the essential character of the act, such as the physical impact or nature of the act.

An essential character mistake involves misunderstanding the act itself or its physical impact, while a collateral matter mistake involves misunderstanding something relevant to the consent, like the terms of a deal.

The plaintiff must be capable of appreciating the nature and likely consequences of the conduct.

Consent is ineffective if obtained by duress, defined as the threat of imminent physical force.

The defendant must show that they used reasonable or comparable force.

An actor can use reasonable/comparable non-deadly force if they reasonably believe another person is about to batter them and have exhausted all other alternatives. (Rest. 2d. § 63)

The actor does NOT have to retreat, give up a right or privilege, or comply with a command before using non-deadly force.

Deadly force can be used if the actor reasonably believes they are at risk of severe injury or death and has exhausted reasonable alternatives, including using lesser force. (Rest. 2d. § 65)

Deadly force is not privileged if the actor can avoid using it with complete safety by retreating (except in their home) or relinquishing rights other than preventing home intrusion or effecting lawful arrest. (Rest. 2d. § 65)

There is no duty to retreat; an actor can fight back with comparable force even if they believe they can safely retreat.

Stand Your Ground laws state that there is no duty to retreat when threatened with deadly force, allowing the use of deadly force anywhere, even outside the home.

The actor has a duty to retreat unless they are in their own home (Castle Doctrine). (Rest. 2d. § 65)

The Castle Doctrine states that an actor in their home is not required to retreat before using deadly force in self-defense, though they must consider other options besides retreat.

Stand Your Ground laws extend the Castle Doctrine to situations outside the home, permitting the use of deadly force where property is threatened.

An actor can use reasonable/comparable force if the third person has the right to self-defense and the intervention is necessary for their protection. (Rest. 2d. § 76)

The actor cannot use force likely to cause bodily harm exceeding what is reasonably necessary to prevent or terminate the intrusion. (Rest. 2d § 81)

Force is reasonable if it is used against an immediate threat to defend property.

The majority of jurisdictions do not allow deadly force in defense of property, but some “stand your ground” states permit it.

Protective devices must be visible or obvious to trespassers, like barbed wire or spiked railings. (Rest. 2d § 84)

Necessity is a defense when intentional interference with property is required to avoid a greater injury.

Public necessity is a complete defense that allows D to interfere with property to avert an imminent public disaster, with no liability for damages. (Rest. 2d § 196)

Private necessity allows interference with property to prevent serious harm to the actor, their property, others, or others’ property. It is an incomplete defense.

Under private necessity, the trespassing D is privileged but may still be liable for damages to the property interfered with, not for trespass.

Public necessity is a complete defense with no liability for damages, while private necessity is an incomplete defense where D may be liable for property damage.

If a person takes an affirmative action, they have a duty to protect others by taking reasonable precautions to prevent foreseeable harm.

If someone chooses to assist another, they have a duty to perform that assistance with reasonable care and can be liable if their failure increases the risk of harm or if the victim or third party relies on their assistance.

Minors are not held to the same standards as adults; the standards vary by jurisdiction, and minors are judged based on age, intelligence, and experience.

Under the Restatement, a child under 5 is incapable of negligence, while those over 5 are judged based on a child of like age, intelligence, and experience.

Under the Rule of 7's, children under 7 have no liability, children 7-14 have a rebuttable presumption of incapacity for negligence, and children over 14 are presumed capable of negligence, which can be rebutted.

The "Like Age, Intelligence, and Experience" rule does not have a specific age cut-off and judges minors based on their individual capabilities in comparison to other children.

In Illinois, children under 7 have no liability, children 7-14 have a rebuttable presumption of no negligence, and children 14 and over are held to an adult standard of care.

Regardless of jurisdiction, if a child engages in an adult activity, such as driving or operating heavy machinery, they are held to the same standard of care as an adult engaged in that activity.

Adult activities for minors include those requiring a license or special training, such as driving, operating heavy machinery, or boating. There may also be gray areas like using a gun or hunting.

A person with a physical disability is held to the standard of a reasonably careful person with the same disability.

It is considered negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.

Mental or emotional disabilities are not considered when determining negligence unless the actor is a child.

An affirmative duty to act may arise if the defendant has a special relationship with the plaintiff or with the dangerous instrumentality causing harm.

Examples include innkeeperuest, business/customer, parent/child, common carrier/passenger, mental health professional/patient, employer/employee, and school/student.

The defendant owes the plaintiff a duty of reasonable care with regard to foreseeable risks that arise within the scope of the relationship.

If a defendant is in a special relationship with someone, they must take reasonable precautions to protect a third party if the person poses a serious threat and there is a readily identifiable victim.

The duty owed to trespassers is to avoid willful or wanton misconduct.

A trespasser enters without consent, a licensee enters with consent for social reasons, and an invitee enters for business or public purposes.

Landowners must exercise reasonable care to protect trespassing children if they know or should know children are likely to trespass, and there is a dangerous condition that poses a risk of harm.

The duty is to warn of hidden artificial conditions that involve a risk of death or serious bodily harm, and to exercise reasonable care in activities that pose such risks.

The only duty owed to flagrant trespassers is to avoid intentional, willful, or wanton conduct that causes harm, though reasonable care is owed to flagrant trespassers who are imperiled and helpless.

Generally, there is no duty to warn of open and obvious dangers unless it is foreseeable that entrants will encounter the danger despite the obvious risk due to necessity, convenience, or recklessness.

Under traditional common law, the duty varies depending on whether the entrant is a trespasser, licensee, or invitee.

In Illinois, a duty of reasonable care applies to licensees and invitees, while only a duty to refrain from willful or wanton misconduct applies to trespassers.

The Restatement 3d approach applies a duty of reasonable care to all entrants except flagrant trespassers.

The Public Duty Doctrine states that public actors owe a duty to the public generally but not to specific individuals unless there is a special reliance.

Public actors have immunity under most statutes, meaning they may not be liable for breach of a common law duty even if it is proven.

The discretionary-function exception bars recovery for government employees' negligence when the actions involve social, economic, or political policy.

In Cuffy v. City of NY, the court held that a public duty exists if there is a special relationship based on an undertaking and reliance between the public actor and the injured party.

The Foreseeability theory of breach states that there is negligence if a reasonably prudent person could foresee injury as a result of their conduct and acted unreasonably in light of what could be foreseen.

The Learned Hand Formula is B < P x L, where B is the burden of taking precautions, P is the probability of injury occurring, and L is the seriousness of the resulting injury.

An actor’s failure to conform their conduct to a relevant industry custom is strong evidence of a breach of duty.

A healthcare professional breaches their duty of care if they fail to exercise the degree of judgment and skills that a reasonable professional would exercise under similar circumstances.

Negligence Per Se occurs when an actor violates a statute designed to protect against the type of accident their conduct causes, and the victim is within the class the statute protects.

In the Majority View, if all elements of negligence per se are met, the violation conclusively establishes breach of duty, and the jury must hold the defendant liable.

In the Minority View, if all elements of negligence per se are met, it provides strong evidence of breach, but the jury is not bound to hold the defendant liable.

The first element of NPS is the violation of a relevant statute, such as a federal, state, or local law that sets clear health or safety standards.

The second element is statutory intent, which means the statute is intended to protect against the type of injury and person bringing the suit.

The third element is no valid excuse for the violation, such as incapacity, lack of knowledge, or the statute being vague or confusing.

The fourth element is causation, meaning there must be a causal link between the violation of the statute and the injury.

Res Ipsa Loquitur is when the plaintiff is unable to identify the specific circumstances surrounding the defendant's breach due to a lack of information, often because the evidence was destroyed.

Res Ipsa Loquitur is rarely used because modern technology has improved the ability to gather evidence, making it easier to identify the breach.

Res Ipsa Loquitur should not be used if there is evidence that can be collected that would help the plaintiff identify the breach and how it occurred.

Causation in fact means that the defendant’s negligence must have been the factual cause of the plaintiff’s injury.

The default test for causation in fact is the but-for causation test.

The test for but-for causation involves identifying the plaintiff’s injury, identifying the defendant’s wrongful conduct, correcting for the wrongful conduct, and determining if the injury would still likely have occurred.

Jordan v. Jordan established that the negligent act must be the direct cause of the injury.

The Loss of Chance doctrine is used when it’s impossible to know whether the defendant caused the plaintiff’s injury due to an underlying risk, often in medical malpractice cases.

To use the Loss of Chance doctrine, the plaintiff must have an underlying medical risk, the defendant’s negligence must increase the risk, and the plaintiff must suffer the injury.

Illinois’ approach is to define the injury as a loss of chance of survival, which allows the application of traditional but-for causation principles.

In cases with multiple negligent defendants, the but-for test is applied when the injuries are divisible or the causes are necessary but insufficient.

The Substantial Factor test holds a defendant liable if their conduct was a substantial factor in causing the injury, especially when multiple causes exist.

The Mixed Test holds any defendant who was a substantial factor or whose negligence alone could have caused the injury to be a cause in fact.

Restatement 3d § 27 states that if multiple acts occur, each of which could have caused the harm alone, each act is regarded as a factual cause of the harm.

Alternative Liability is used when multiple defendants may be the cause, but it is unknown which one, and the burden shifts to each defendant to prove they were not the cause in fact.

For Alternative Liability, all breaching defendants must be joined, and if any cannot disprove causation, they are jointly and severally liable.

Breach is analyzing whether the burden of preventing a foreseeable harm was less than the probability of the injury occurring.

Proximate cause analyzes the risks identified in the breach analysis to determine if the harm was a foreseeable result of the defendant's conduct.

The judge determines duty, standard of care, and scope of duty.

The jury determines breach, cause-in-fact, and proximate cause.

An actor's liability is limited to harms resulting from the risks that made the actor's conduct tortious.

1. Identify the breach of duty. 2. Identify injurious outcomes that could reasonably be foreseen from that breach to determine the scope of proximate cause.

Factors include the type of harm, manner of harm, temporal/spatial proximity, and policy/practical implications.

Hughes v. Lord Advocate involved a defendant being liable even if the damage was greater than what was foreseeable.

An intervening act occurs when the carelessness of D1 causes harm to the victim only because of subsequent harmful acts by D2, but does not break the chain of causation.

A superseding cause is an intervening act that breaks the chain of proximate causation, relieving D1 of liability for the victim's injury.

D1 remains liable for harm caused by D2 if D2’s act is merely unforeseeable but does not sever the liability of D1.

Britton v. Wooten involved intervening intentional acts, where the defendant was still liable because the criminal act was foreseeable.

The defendant is liable for the additional injury caused by the accident, as it is the foreseeable consequence of the original injury.

The defendant is liable for any worsened injuries caused by negligent medical treatment following the original injury.

The eggshell plaintiff rule holds that a defendant will be liable for the full extent of injuries, even if the extent was unforeseeable due to the plaintiff’s underlying condition.

Benn v. Thomas illustrates the eggshell plaintiff rule, where the plaintiff suffered a heart attack after a car accident.

The rescue doctrine states that if a rescuer is injured while trying to help a victim of the defendant's negligence, the defendant will be liable for the rescuer’s injury.

The common law rule, now largely rejected, holds that malicious intentional acts are not foreseeable and thus not within the scope of liability.

The majority rule holds that an individual’s act of suicide is a superseding cause, breaking the chain of responsibility linking the loss to the negligent act.

Exceptions include when the defendant causes delirium or insanity leading to suicide, or when the defendant has a custodial relationship with the victim and is negligent in caring for them.

For divisible harms, the court will apportion damages, and each defendant is responsible only for their share.

For indivisible harms, each defendant is responsible for the full damage award, and the plaintiff can only collect once.

The risk is allocated to the negligent defendants, not the plaintiff.

Each defendant is responsible only for their share of damages, and the risk is allocated to the plaintiff.

Under Illinois law (735 ILCS 5/2-1117), all liable defendants are jointly and severally liable for the plaintiff's medical expenses.

If a defendant’s comparative fault is less than 25%, they are severally liable for all other damages, meaning they are responsible only for their share of damages.

If a defendant’s comparative fault is more than 25%, they are jointly and severally liable for all other damages, meaning they are responsible for the full damage award.

In Illinois apportionment questions, separate out medical and non-medical damages, as joint and several liability applies to all medical damages and for defendants over 25% at fault for other damages.

The jury determines the apportionment of fault, with factors such as the seriousness of the conduct and the causal connection to the harm being considered.

Factors for assigning fault include the seriousness of the risk-creating conduct and the causal connection between the conduct and the harm.

A defendant’s share of fault is calculated based on factors like the seriousness of their conduct and its causal connection to the harm, as per Rest. 3d § 8.

Comparative negligence occurs when the plaintiff knew or should have known the risks and failed to exercise reasonable care, contributing to their injury alongside the defendant’s breach of duty.

The plaintiff knew or should have known of the foreseeable risk and acted unreasonably by failing to exercise due care.

Cause-in-fact asks if it is more likely than not that the incident could have been avoided if the plaintiff had used more care.

In pure comparative negligence, the plaintiff can recover damages regardless of how negligent they were, even if they are 99% at fault.

In modified comparative negligence, the plaintiff can only recover if their fault is equal to or less than the defendant’s fault.

Under the "Up to 50%" rule in Illinois, the plaintiff must be 49% at fault or less to recover damages.

Assumption of risk occurs when the plaintiff voluntarily consented to encounter a risk they were actually aware of.

Express assumption of risk occurs when the plaintiff formally agrees to assume the risk of harm, often through a signed waiver or verbal statement.

Implied, primary assumption of risk occurs when the plaintiff chooses to undertake the inherent risks of an activity, and there is no breach by the defendant.

Implied, secondary assumption of risk occurs when the plaintiff chooses to accept additional risks that are created by the defendant’s negligent actions.

The analysis steps include determining whether public policy prohibits the waiver and whether the waiver is written in a way that a court would enforce its provisions.

Public policy in assumption of risk involves considering whether the defendant’s activities are essential or widespread, and whether allowing the defendant to escape liability would be unfair or harmful to many plaintiffs.

The waiver must specifically release the defendant from the particular risk that led to the plaintiff’s injury, and general language is not enough. Courts are more likely to enforce waivers that use specific language like “negligence.”

Under common law, the waiver must be freely and fairly made, with the plaintiff’s assent given after understanding the terms, and there must be no significant disparity in bargaining power.

Under 3d § 2, waivers are treated like traditional contracts, where signing it binds the plaintiff to its terms, but considerations like duress or fraud may still apply.

Ask whether the defendant breached a duty, following the same rules as for negligence.

Ask whether the breach falls under the categories of circumstances where Negligent Infliction of Emotional Distress (NIED) is permitted.

Ask whether the breach was the actual cause (cause-in-fact) of the plaintiff’s emotional distress.

Ask whether the breach was the proximate cause of the plaintiff’s emotional distress.

NIED differs from negligence alone because generally, the defendant does not owe a duty to protect against emotional harms that do not arise from an initial physical injury.

Recovery may be allowed when the defendant acts negligently causing emotional distress to the plaintiff, or in very specific relationships or circumstances like death, birth, or fear of disease.

The "zone of danger" refers to when the plaintiff suffered emotional distress within the spatial zone where they could have sustained a physical injury, as outlined in Rest. 3d. § 47(a).

Bystander recovery occurs when the plaintiff suffers emotional distress due to witnessing the defendant’s negligent act towards someone close to them.

Rest. 3d. § 48 focuses on the contemporaneous witnessing of serious injury to a close family member for bystander recovery in NIED cases.

The Impact Rule allowed plaintiffs to recover for emotional distress only if it arose from contemporaneous physical impact or injury.

Special cases include negligent conduct causing serious emotional harm in situations like mishandling of dead bodies, wrongful reporting of death, babies switched at hospitals, injury to fetus, or wrong diagnosis of disease.

For bystander recovery, the plaintiff must perceive the event contemporaneously, and the victim suffering bodily injury must be a close family member.

Strict liability means that the defendant has liability to the plaintiff for injuries caused by an abnormally dangerous activity or use of property, regardless of the defendant's negligence or fault.

Whether the defendant is engaged in an abnormally dangerous activity.

The Second Restatement approach lists factors such as a high risk of harm, the likelihood of great harm, impossibility of eliminating the risk even with due care, uncommon usage, locational inappropriateness, and comparing the activity's value to its danger.

The two elements are: 1) the activity creates a foreseeable and significant risk of harm even with reasonable care, and 2) the activity is not of common usage.

An activity is "not of common usage" if it is not widely done or accepted, which may make it more likely to be considered abnormally dangerous.

A key factor is whether the risk of harm can be eliminated even with the exercise of due care.

Proximate cause in strict liability cases is analyzed by determining if the plaintiff's injury is within the types of risks that made the defendant's conduct dangerous.

Proximate cause in strict liability is analyzed the same way as in negligence cases by determining if the injury was a foreseeable result of the defendant’s actions.

In issue spotting, consider whether there is a hazard in the activity that cannot be avoided, whether the risks and benefits of the activity correspond, and whether plaintiffs have an opportunity to protect themselves.

Plaintiff’s comparative negligence. If the plaintiff was comparatively negligent, their recovery in a strict liability claim is reduced based on their share of responsibility.

If the plaintiff’s failure to take reasonable precautions reduces the risk, it may turn a strict liability case into a standard negligence case, making it harder for the plaintiff to prove negligence.

The key factor is whether the activity creates a significant risk even when reasonable care is exercised by everyone involved.

An intervening cause is considered to break the chain of causation only if it is "highly extraordinary" and completely unanticipated, otherwise, the defendant remains liable.

An employee is acting within the scope of employment if their conduct (1) is of the general kind they were hired to perform, (2) occurs substantially within the hours and spatial boundaries of employment, and (3) is motivated, at least in part, by serving the employer’s interests.

Personal acts incidental to employment (e.g., bathroom breaks), mere detours in driving-related jobs, and activities that align with expected work tasks.

Acts within an independent course of conduct not intended to serve the employer's purpose, such as frolics or intentional torts, are outside the scope of employment.

Under the Coming and Going Rule, an employee commuting to or from work is generally not acting within the scope of employment unless on a special errand or mission for the employer.

An employer may be liable if the job involves the use of force or if the relationship involves power or confidentiality that facilitates abuse (e.g., therapist or clergy).

A non-delegable duty is a responsibility so important that an employer cannot fully delegate it to an independent contractor.

A non-delegable duty is analyzed only if the actor is determined to be an independent contractor, not an employee.

Examples include duties important to the public, established by statute or contract, involving inherently dangerous activities, or requiring special precautions for peculiar risks.

An employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance or work.

Under Respondeat Superior, an employer can be liable for the actions of an employee if they act within the scope of their employment or agency.

The control test should be used to determine whether someone is acting as an employee or an independent contractor.

Factors include the extent of control over work details, distinct occupation or business, kind of occupation, skill required, who supplies tools, length of employment, payment method, and whether the work is part of the employer's business.

If the employer provides the tools and workplace, it weighs in favor of finding that the individual is an employee under the control test.

The apparent agency test focuses on the appearance of control rather than actual control by the employer.

There must be a representation, affirmation, or lack of denial by the employer, and reliance by the plaintiff.

The apparent agency test considers the employer’s representation of control, while the control test evaluates actual control over the work.