2+∆ type shi (& π liability) Flashcards
An employer is vicariously liable for the intentional torts of her employee if:
(1) the job involved an authorized use of force and the force is misused;
(2) where the job involves confrontation; and (3) the tort is committed with the misguided desire to serve the employer’s purpose.
Under Respondeat Superior, when is an employer vicariously liable for non-intentional torts committed by an employee?
While the employee was acting within the scope of his/her employment OR while furthering the business interests of his/her employer.
Explain the difference between an employee’s frolic & detour
Detour: Small deviation from the assigned route within the scope of employment ➤ Employer VL
Frolic : A more major deviation for something outside of the scope of employment ➤ ≠ VL
When is a ∆liable for the action of an independent contractor they hired?
When they are hired for an inherently dangerous activity
An owner of a car is not variously liable for the actions of a third party who is driving the owner’s care unless
It is given to perform an errand on behalf of the owner
[Note: Some states follow “Family Car” (VL for any member of the household) or “Permissive Use Doctrines” (VL for anyone given permission) ]
In California, are (Uber/Lyft) drivers considered employees or Independent Contractors?
Independent Contractors
Non-Delegable Duty Exception
Even though you retain an independent contractor rather than an employee, you still have vicarious liability because of the nature of the activity.
(Closely related to ultra hazardous activity)
Vicarious Liability
When a passive ∆has a sufficiently strong relationship with an active ∆
↳ they can be held liable for the active ∆’s actions.
For the sake of ascertaining liability, Franchises are considered
Independent Contractors
When you eliminate J&S liability, you eliminate the need for
Contribution + Indemnity
Indemnity
one defendant bears the entire
loss, trying to recover it all.
[Seen in: Vicarious Liability; Products Liability (retailer/manufacturer)]
Contribution
Two parties share the loss
Indemnity Examples
➤ Seller vs. Manufacturer
➤ Car Owner vs Driver
➤ Employer v Employee (When employer is just vicariously liable through status → its the employee that should ultimately bear the loss) Not applicable often
Under UCFA: When there are multiple negligent parties and D is insolvent,
divide up the insolvent parties’
liability/damages among solvent parties
The Plaintiff is required to “eat” his own percentage of fault, as is the solvent defendant
Uniform Comparative Fault Act
Assumes J&S Liability still exists and essentially relocates the loss between the two parties that are solvent (in accordance with their relative fault vis-à-vis each other)
