Vicarious Liability

Question 1

What is Vicarious Liability?

Answer 1

The tortious act of one pers. may be imputed to another based on the rel. b/w the two parties

Question 2

Respondeat Superior Doctrine

Answer 2

Employer-Employee Relationship

• If an employee commits a tort in the scope of her employment, her employer will be vic. liab. (jointly liab. w/ employee)

Question 3

Scope of Employment

Answer 3

Employee was acting with the intent to further her employer’s bus. purp.

• Frolic & Detour - Side Trip (Pers. errand)
  
  • Traditional - Return trip to work was w/in scope of emp. but trip to the pers. errand was not
  • Modern - Within scope of employment if the deviation is reas. foreseeable

Question 4

Is an employer vicariously liable for the intentional torts of his employees?

Answer 4

Employer is not vic. liab. for the int. torts of employees

Exceptions:

1. Specifically Auth. by employer
2. Nature of Employment
3. Motivated By Desire to Serve the Employer

Question 5

Intentional Torts of Employees

Nature of Employment Exception

Answer 5

tort was foreseeable or characteristic (e.g. nightclub bouncer, drunken coast guard sailors)

Question 6

Intentional Torts of Employees

Motivated by a desire to serve the Employer Exception

Answer 6

Employer will be resp. for int. torts:

1. Committed by employee AND
2. Motivated by desire to serve employer (to further employer’s bus.)
3. No matter how misguided that desire is (e.g. debt collection w/ force)

Question 7

Is the one who hires an Independent Contractor liable for the torts of that contractor?

Answer 7

One who hires an indep. contractor is not liab. for the torts of the contractor

Exceptions:

1. Direct Liability in Negligence
2. Non-Delegable Duty

Question 8

Independent Contractor

Direct Liability Exception

Answer 8

Employer liab. for her own neg. in hiring (selecting) or supervising the indep. contractor

Question 9

Independent Contractor

Non Delegable Duty Exception

Answer 9

Duties to invitees are deemed so important that owner of the prop. will not be allowed to delegate them to anyone

• e.g. statutory duty to keep brakes in good working order can’t be delegated to a mechanic, city’s duties to keep streets in good cond.

Question 10

Partners & Joint Ventures

Answer 10

Partners & joint ventures are vic. liab. for tortious conduct of another member in the scope & course of the affairs

Question 11

Are owners of a car vic. liab. for the torts of the driver?

Answer 11

Owner of a car is not vic. liab. for the torts of the driver

Exceptions:

1. Family Car Doctrine
2. Driver Acting on Behalf of the Owner - (E.g. running errands for owner)
3. Negligent Entrustment

Question 12

Auto Consent

Family Car Doctrine Exception

Answer 12

(Some States) - Owner liab. for tortious conduct of immed. fam. or household mem. who is driving car w/ owner’s exp. or imp. consent

Question 13

Auto Consent

Negligent Entrustment Exception

Answer 13

Owner liab. for her own direct neg. in entrusting car to unsafe driver

• some states extend this liab. to situations where owner was present in the car when tort occurred

Question 14

Are parents liable for the torts of their children?

Answer 14

Common Law = Not Vicariously Liable

• Make sure parents were completely passive & not neg. in a way that contributed to the child’s tortious conduct b/c parents will still be held liab. for their own direct neg.

Modern Law - (most states) - Parents liab. for the willful & int. torts of their minor children by statute

• Statutes limit liab. of parents to a certain dollar amount

Question 15

Tavern Keepers

Answer 15

taverns, liq. stores and other commercial establishments that serve alcohol aren’t vic. liab. unless there is a Dramshop Act

• Common Law = No Liability - BUT some cts. have found tavern keepeers liab. for their own direct neg. (foreseeable risk of selling alcohol to visibly intox. persons or minors)
• Modern Law = Dramshop Acts

Some states will hold these establishments liab. even w/out Dramshop Act

Question 16

What is a dramshop act?

Answer 16

Est. the liab. of establishments for selling alcohol to persons who subseq. cause death or injury to 3d parties (those not having a relationship to the bar) as a result of alcohol-related car crashes & other accidents

• Some states will hold these establishments liab. even w/out Dramshop Act

Question 17

If an employer is held liable for the actions of an employee, then who can an employer recover from?

Answer 17

Can seek indemnity from the employee

Question 18

What claims can be brought against parents for the torts of their children?

Answer 18

1. Negligent Supervision
2. Negligent entrustment

Question 19

How is an employer directly liable for their employees?

Answer 19

Negligent Hiring

Question 20

When is an employer liable for an independent contractor’s actions?

Answer 20

When it’s not an independent contractor, and it is an employee

• The more the employer controls:
  
  • Means
  • Methods
  • Manner of work
• The more likely they are an employee

Question 21

What is the effect of a survival statute?

Answer 21

The death of the victim or tortfeasor no longer abates the tort action and the claim survives the death of the victim

• Claim becomes an asset of the estate

Question 22

What is the effect of a wrongful death statute?

Answer 22

Action the heirs of deceased vic. or the personal rep. of the vic’s estate may bring a claim for their loss due to death

Question 23

When is a principal liable for the torts of an independent contractor?

Answer 23

The indep. contractor takes part in:

1. Abnormally Dangerous Activities
2. Non-delegable duties