General Considerations for All Tort Cases Flashcards
What is the doctrine of respondeat superior?
A master/employer will be vicariously liable for the tortious acts committed by her servant/employee if the tortious act occurs within the scope of the employment relationship.
When an employee deviates in a minor way from his employer’s business, and commits a tort, is the employer liable?
Yes. If the deviation is minor he is still acting within the scope of his employment. If the deviation in time or geographic area is substantial, the employer is not liable.
Are employers liable for the intentional torts of their employees?
Generally not. With exceptions:
1) Force is authorized in the employment
2) Friction is generated by the employment
3) The employee is furthering the business of the employer, e.g. removing customers from the premises if they are rowdy.
Is a principal vicariously liable for tortious acts of her agent if the agent is an independent contractor?
Generally no but two BROAD EXCEPTIONS exist
What are the two exceptions to the principal not being vicariously liable for the tortious acts of an independent contractor?
1) The independent contractor is engaged in an inherently dangerous activity
2) The duty, because of public policy considerations, is simply nondelegable
With regards to a joint venture or partnership, is a partner vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or JV?
Yes.
Are automobile drivers liable for other drivers of their car?
Generally they are not vicariously liable for the tortious conduct of another person driving his automobile. Some states have other theories other than vicarious liability to hold the owner liable, such as the family car doctrine, permissive use, and negligent entrustment
What is the Family Car Doctrine
In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.
What is permissive use, with regards to automobiles?
A number of states have gone so far as to impose liability on the owner of a car for damage caused by anyone driving with the owner’s consent
What is negligent entrustment? With regards to autos.
An owner may be liable for her own negligence in entrusting the car to a driver. Some states go as far as to say if the owner was present but not driving she can be liable.
Is a bailor vicariously liable for the bailee’s actions?
No, generally. Unless negligent entrustment.
Is a parent vicariously liable for their child’s tortious conduct?
At common law no they are not. But most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount.
Is a parent liable for their child’s actions if the child is acting as an agent for the parent?
Yes.
What if a parent allows their child to do something?
The parent may be liable for her own negligence.
What is the common law regarding tavernkeepers?
There is no liability imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of vendee’s conduct.
What is the modern law with regards to tavernkeepers?
Many states have enacted Dramshop Acts. These acts usually create a cause of action in favor of any third person injured by the intoxicated vendee. This liability is based on a negligence theory (the foreseeable risk of serving a minor or obviously intoxicated adult)
Exam Tip
When you see an MBE question on vicarious liability, recognizing whether the doctrine applies is only the first step in your analysis. Even where defendant is not vicariously liable, plaintiff may prevail if defendant personally was negligent in supervising the person causing the injury. Always look for this answer option among your answer choices.
