Chapter Fourteen Flashcards
What is the doctrine of respondeat superior, and what is its rationale?
The doctrine of respondeat superior makes an employer vicariously liable for the tortious
conduct of its employees. The rationale most commonly used to justify this doctrine is that
employers should consider the expense of reimbursing those injured by their employees as
part of the cost of doing business.
Under what conditions does respondeat superior apply, and when does it not apply?
It applies to negligent torts, intentional torts, and strict liability claims. The employee must
be acting within the scope and furtherance of his or her employment.
What criteria are used to distinguish an employee from an independent contractor?
- The extent of control exercised by the master over details of the work and the degree of
supervision. - The distinct nature of the worker’s business.
- Specialization or skilled occupation.
- Materials and place of work.
- Duration of employment.
- Method of payment.
- Relationship of work done to the regular business of the employer.
- Belief of the parties.
What is the significance of belief of the parties?
If the finding is that the person was an independent contractor the person doing the
hiring is not liable for the independent contractor’s negligence.
Under what conditions can an employer be held liable for the negligence of an
independent contractor?
as can an employer who contracts for the performance of an illegal activity.
What have courts and legislatures done to avoid the bailor-nonliability rule?
They have adopted a number of strategies by which vicarious liability can be placed on the
owners of vehicles.
Describe the family-purpose doctrine.
According to this doctrine the assumption is made that the driver is carrying out a
“family purpose,” making the family head, typically the most financially responsible
person in the family, vicariously liable
What is an automobile-consent statute?
This statute makes the owner vicariously liable for negligent acts committed by anyone using the car with the owner’s permission.
What is an omnibus clause, and how has it affected automobile-consent statutes?
The “omnibus clause” extends insurance coverage to members of the insured’s
household and to any person using the automobile with the insured’s permission, as long as the use falls within the scope of the permission given.
What is a joint enterprise?
Two or more persons who agree to a common goal or purpose, share a common pecuniary interest, and have an equal right to control the direction of the enterprise.
What is the purpose of the joint-enterprise doctrine?
To make the owner of an automobile vicariously liable for torts involving the
automobile.
What elements must be present for a joint enterprise to exist?
The plaintiff must prove the following:
- An express or implied agreement among members of a group.
- A common purpose or goal to be carried out by the group.
- A common pecuniary interest in the purpose or goal.
- An equal right of each member to control the direction of the enterprise.
Give an example of a situation in which negligence would be imputed.
Under the modern rule, contributory negligence is imputed only if the relationship is such
that the plaintiff would be vicariously liable if he or she were a defendant.
Give an example of a situation in which negligence would not be imputed.
The contributory negligence of a bailee is generally not imputed to the bailor, even
when the bailor would be liable as a defendant pursuant to an automobile-consent
statute.
What is the general rule today regarding the imputing of contributory negligence?
The rule regarding the imputation of negligence is in general disfavor today. In most states the negligence of one spouse is not imputed to the other (except in some
community-property states where recovered damages are treated as community
property), nor are parents or children barred from recovery because of the negligence of
the other.
