(3) Torts: Vicarious Liability & Joint/Several Liability Flashcards
Vicarious Liability General Rule
Vicarious liability is a form of strict liability where one person is liable for the acts of another when they have the right, ability or duty to control the activities of another.
Definition:
Employee/Employer (Respondent Superior)
A person is an employer if they have the right to control the means and methods by which another performs a task or achieves a result. The person subject to this right is an employee. Absent a right to control the person is likely an independent contractor.
Rule:
Employee/Employer (Respondent Superior)
An employer is liable for the tortious conduct of an employee that is within the scope of employment. Acts within the scope of employment are those in which the employee is employed to perform or that which are intended to profit or benefit the employer.
Employee/Employer (Respondent Superior)
Can an Employer be liable for the intentional torts of the employee?
An employer is usually not liable for the intentional torts of an employee unless (a) the force is inherent in the employees work or (b) the employer authorizes the employee to act of their behalf and the employees position provides an opportunity to commit an intentional tort (ex. Entering into a fraudulent contract with a 3rd party the employer is liable).
Is an employer liable for negligent management of employees?
YES, an employer is liable for its own negligence in the hiring, training, supervising or entrustment of an employee.
Detour vs Frolic
Employee/Employer (Respondent Superior)
An employer is liable for a tort committed by the employee during a detour (a minor and permissible deviation from the scope of employment) but not for an employee’s frolic (an unauthorized and substantial deviation).
Definition:
Independent Contractor
An independent contractor is one engaged to accomplish a task or achieve a result but who is not subject to another’s right to control the method and means by which the task is performed, or the result reached.
Rule & Exceptions:
Independent Contractor
Generally, there is no vicarious liability for those who engage independent contractors.
Exceptions: (a) inherently dangerous activities; (b) non-delegable duties arising out of a relationship with a specific P or the public (ex. Construction work next to a freeway); (c) the duty to keep premises open to the public in a reasonably safe condition; and (d) in a minority of jurisdictions the duty to comply with the state safety statutes.
Apparent Agency Rule
Independent Contractor
A person is vicariously liable for an independent contractor if (1) the services are accepted under the reasonable belief they are an employee AND (2) the independent contractor’s negligence is a factual cause of the physical harm to the person receiving the services and such harm is within the scope of liability.
Rule & Exception:
Parent/Child Vicarious Liability
Generally parents are not vicariously liable for their minor children’s tortious acts, except when: (a) the child commits a tort while acting as the parents agent; (b) state statute specifies the parent is liable (ex. School violence or vandalism); OR (c) Statute requires the parent to assume liability (ex. When they sign for the child’s drivers license application).
Parent/Child Negligence & Intentional Torts
Parents are liable for their own negligence with respect to their minor children’s conduct. A parent must exercise reasonable care to prevent their minor child form intentionally or negligently harming a 3rd party providing the parent (1) have the ability to control the child; AND (2) knows or should know of the necessity and opportunity for exercising such control.
Automobile Owner
The owner of the vehicle may be liable for the negligent acts of the driver if they knew or should have known of the drivers negligent propensities.
This also applies to objects that carry a potential for harm such as guns and lawn mowers.
Partnership Rule
Partners in a partnership are jointly and severally liable for torts committed within the scope of the partnership.
Joint Venture Rule
Participants in a joint enterprise where each has a common purpose with the other participants and there is a mutual right of control may be liable for the tortious acts of each other committed within the scope of the business purpose.
Definition & When it applies:
Indemnification
Indemnification is the shifting of the entire loss from one person to another.
It generally applies when one party is vicariously liable for the other’s wrongdoing.
Indemnification also applies when (a) there is a prior indemnification agreement; (b) there is a significant difference between blameworthiness between the 2 D’s such that equity requires a shifting of loss to the more blameworthy D; OR (c) under strict products liability (when a supplier has a right of indemnification against all previous suppliers in a distribution chain).
