General Considerations Flashcards
When is an employer vicariously liable for an employee’s frolic and detour?
only when the employee makes a minor departure
When is an employer vicariously liable for the employee’s torts?
When they are within the scope of the employment.
Is an employer vicariously liable for an employee’s intentional torts?
no, unless violence is part of the job (e.g., nightclub bouncer)
Are parties vicariously liable for their independent contractors?
no, unless the contractor is either:
• engaged in an inherently dangerous activity, or
• public policy requires an exception
Is an automobile owner vicariously liable for the torts of the car’s driver?
no, unless either:
• the driver is performing an errand for the owner, in which case liability may be premised on agency principles
• family car states – owner vicariously liable for the torts of any household member using his car with permission
• permissive use states – owner vicariously liable for the torts of anybody using his car with permission
Are parents vicariously liable for their children?
no
When Person A entrusts something to Person B, how might Person A be liable even without vicarious liability?
negligent entrustment / inducing negligent conduct
In what situations is joint and several liability available?
- concert of action: all defendants who act in consequence are liable for the entire harm, even ones who did not actually cause the harm
- indivisible harm: when multiple defendants acting independently cause a harm that cannot be attributed only to one of them (indivisible)
What is the effect of joint and several liability?
Each defendant can be liable to plaintiff for the entire damage suffered
What is the effect of indemnity?
Passive defendant receives full reimbursement from active defendant. E.g., when an employer pays for an employee’s tort, the employer can seek indemnification from the employee. (Note: cannot be used with contribution)
What are the traditional and modern rules of contribution?
• Traditional rule: the paying defendant recovers proportional shares from the other defendants
• Comparative contribution: recovery is based on the relative fault of each tortfeasor
(Note: cannot be combined with indemnity)
Define a wrongful death action.
Actions brought by a decedent’s beneficiaries for their own loss of support/companionship that the deceased would have provided.
(Note: subject to any defenses that could have been made against the deceased.)
Define survival actions.
Actions brought by a decedent’s estate based on claims that he would have made had he lived.
(Note: subject to any defenses that could have been made against the deceased.)
Does family immunity exist in tort law?
no
In which activities does the government retain immunity, and in which does it not?
- no immunity when performing a proprietary function
* immunity when performing government traditional government activities, unless waived by a statute
