General Considerations for All Tort Cases

Question 1

What is vicarious liability?

Answer 1

Derivatively imposed liability: when one person commits a tortious act against a victim, a third party is liable to the victim even when they played no active part. Liability is based on a special relationship between the vicariously liable party and the tortfeasor.

Question 2

What is the doctrine of respondeat superior? ***MAKE SEPARATE CARD FOR DETOUR/FROLIC

Answer 2

An employer is vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship.
Distinct from employer negligence in hiring employees (this is direct negligence)

Question 3

When may employers be vicariously liable for their employees’ intentional torts?

Answer 3

General rule: employers are not vicariously liable for the intentional torts of their employees,

Exceptions where tort seen as w/in scope of employment:

• Force is authorized in the employment
• Friction is generated in the employment (e.g., debt collector)
• The employee is doing the bidding/furthering the business of the employer

Question 4

When will someone be liable for the torts of their independent contractor?

Answer 4

Generally a principal is not vicarious liable for independent contractors’ torts.

Exceptions:

• the contractor is engaged in inherently dangerous activities like. blasting
• the duty is nondelegable for public policy reasons (the duty of a business to keep its premises safe for customers)

Question 5

What is the vicarious liability of members of a partnership or joint venture?

Answer 5

Each member of a partnership/JV is vicariously liable for the torts of other members committed in the scope and course of affairs of the partnership or JV.

Question 6

What is the vicarious liability of a car owner for the torts of a car driver?

Answer 6

Generally no vicarious liability.

Some courts have adopted:

• the family car doctrine: extending owner liability for the torts of drivers in their immediate family/household
• the permissive use doctrine extending owner liability for any driver driving the car with the owner’s consent

Question 7

What is the vicarious liability of a bailor for the torts of a bailee?

Answer 7

Generally no vicarious liability

Question 8

What is the vicarious liability of a parent for a child?

Answer 8

Generally no vicarious liability, though may be directly liable for own negligence in allowing a child to do something

Exceptions
- when the child is agent as the parent’s agent

Question 9

What liability is imposed by Dramshop Acts?

Answer 9

There is generally no common law vicarious liability for vendors of intoxicating beverages for injuries resulting from vendee intoxication, but Dramshop Acts create state law causes of action in favor of any third person harmed by the vendee. It may also be possible to impose liability on a tavern keeper where the injury resulting was a foreseeable consequence of supplying the alcohol.

Question 10

What is joint and several liability?

Answer 10

When the conduct of two or more tortfeasors (acting independently or in concert) have combined to make an indivisible injury, the tortfeasors are each liable for the entirety of the damage.

If the injury is divisible, the tortfeasor’s are only liable for the portion of the injury for which they are directly responsible. Some states abolish joint and several liability where the combined fault of the tortfeasors is less than the plaintiff’s or where the damages are noneconomic.

Question 11

What is satisfaction?

Answer 11

If a plaintiff recovers full payment from one tortfeasor, there is a satisfaction and they may not recover any further against any other tortfeasors.

Question 12

What is the effect of a plaintiff’s release of claims against one tortfeasor on the liability of other tortfeasors?

Answer 12

If the plaintiff releases claims against one tortfeasor, that does not generally discharge the liability of other tortfeasors unless expressly provided in the agreement. The claim against the others will be reduced by the greater of the amount stipulated in the agreement or the consideration paid.

Question 13

What is contribution?

Answer 13

Any tortfeasor required to pay more than their share of damages may recover from the other jointly liable parties for the excess. This is a device apportioning by fault. The tortfeasor from which contribution is sought must be liable (no defense to liability like immunity). Contribution does not apply to intentional torts.

Question 14

What is comparative contribution?

Answer 14

A majority of states determine contribution by percent of fault of each tortfeasor. A minority divide fault into equal shares.

Question 15

What is indemnification?

Answer 15

Indemnity shifts the entire loss between/among tortfeasors. It is available where:

• one person has contracted to indemnify another in those circumstances
• a party who has been held vicariously liable for damages may recover them from the actual tortfeasor
• each supplier in the chain of distribution in a strict products liability action may obtain indemnification from the manufacturer
• sometimes if there is considerable difference in degree of fault between tortfeasors

Question 16

Which torts survive the death of the victim and which do not?

Answer 16

In a majority of states, causes of action for torts against property or personal injury torts survive the death of either the victim or tortfeasor. A tort invading the intangible personal interests of the victim will not survive the victim’s death (e.g., defamation, malicious prosecution, etc)

Question 17

Who may bring an action for wrongful death?

Answer 17

Depending on the jurisdiction, either the personal representative or a surviving spouse/next of kin.

Question 18

What is the measure of recovery in wrongful death actions?

Answer 18

Pecuniary injury to the spouse or
next of kin resulting from loss of support and companionship but no recovery for decedent’s pain and suffering. Decedent’s creditors have no claim on the amount awarded.

Question 19

What actions are available for tortious interference with family relationships?

Answer 19

Loss of consortium is an action available to spouses and parents. Not available as an action by a child over injury to the parent. Recovery is derivative and depends on the potential success of the injured party’s own action.

Question 20

To what extent may the federal government be held liable for torts?

Answer 20

The Federal Tort Claims Act has waived US immunity for tortious acts. Immunity still attaches for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contractual rights. Immunity is not waived for discretionary acts (planning/decisionmaking) but is for operational level acts.

Question 21

To what extent may states be held liable for torts?

Answer 21

Same as the federal government, broadly speaking

Question 22

To what extent may municipalities be held liable for torts?

Answer 22

In about half of states, municipal tort immunity has been abolished similarly to state/federal. Elsewhere municipal immunity attaches where functions are governmental in character but not where proprietary.

Question 23

What is the public duty doctrine?

Answer 23

A duty owed by a municipality to the public at large (police protection, for example) is not owed to any particular citizen and there will be no liability for failure to perform duty for a particular person absent a special relationship. That special relationship will exist where the municipality has assumed the duty through words or conduct, where they knew inaction could lead to harm, where they had direct contact with the injured party, and where the injured party relied on their affirmative undertaking.

Question 24

What is the distinction between an employee’s detour from their duties while on the job and a “frolic” for purposes of respondeat superior?

Answer 24

An employee on a business trip/delivery run may commit a tort while doing something personal and the employer will still be liable if it was a detour from the employment purpose rather than a “frolic” of the employee’s own.