General Considerations for All Tort Cases

Question 1

vicarious liability

Answer 1

one person commits a tortious act against a third party and another person will be liable to the third party for this act

Question 2

doctrine of respondeat superior

Answer 2

a master/employer will be vicariously liable for tortious act committed by her servant/employee if the tortious acts occur within the scope of the employment relationship

Question 3

detour

Answer 3

minor deviation from employer’s business for employee’s own purposes is still acting within the scope of his employment

Question 4

frolic

Answer 4

substantial deviation for employee’s own purposes is not acting within scope of his employment

Question 5

Intentional tortious conduct by employees may be within the scope of employment when

Answer 5

1) Force is authorized in the employment, e.g., bouncer,
2) Friction is generated by the employment, e.g., bill collector, or
3) The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy

Question 6

A principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contractor unless

Answer 6

(i) The independent contractor is engaged in inherently dangerous activties, e.g., excavating next to a public sidewalk or blasting.
(ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty to use due care in building a fence around an excavation site.

Question 7

contribution

Answer 7

allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess, i.e., it apportions responsibility among those at fault

Question 8

comparative contribution

Answer 8

contribution is imposed in proportion to the relative fault of the various defendants

Question 9

indemnity involves

Answer 9

shifting the entire loss between or among tortfeasors

Question 10

Indemnity is available in the following circumstances

Answer 10

(i) by contract, (ii) in vicarious liability situations, (iii) under strict products liability, and (iv) in some jurisdictions, where there has been an identifiable difference in degree of faults (e.g., retailers who negligently rely on a product’s condition may receive indemnification from the manufacturer who negligently manufactured it)