General Tort Considerations

Question 1

Vicarious Liability- Employer- employee

Answer 1

Employer is vicariously liable for torts of employee if employee was acting within the scope of his employment.

Frolic= major deviation, employer not liable
Detour= minor deviation, employer liable

Employer is NOT liable for employees intentional torts, unless violence is part of the job. (i.e bouncer, debt collector)

Employer generally not liable for independent contractors.
exception - if IC engaged in inherently dangerous activity (i.e blasting, excavating)
exception - public policy (non-delegable duties)

Question 2

Vicarious Liability - Car owner

Answer 2

Generally, no vicarious liability if lend car.
(could still be liable if performing errand, agency principles apply).

Minority rules -
“Family Car” - owner VL for torts of any household member using car w/ permission
“Permissive Use” - Owner VL for torts of anyone using with permission.

Question 3

Vicarious Liability - parent child

Answer 3

Generally, no VL.

NOTE: For all VL, look for direct liability first.
ex. parents give 8 yr Tommy a gun, shoots bob’s dog. Parents directly liable for negligence, (not VL)

Question 4

Adjustment of Rights between Multiple Defendants: Joint and Several

Answer 4

Joint and Several Liability - Each D can be liable to P for entire damage.

Occurs when:
Two D’s act in concert or
Two D’s cause single but indivisible harm.

Question 5

Adjustment of Rights between Multiple Defendants: Indemnity vs. Contribution

Answer 5

(these actions are solely for other D’s to recover from another D)

Indemnity - Passive D receives FULL reimbursement (100%) from active D.
ex. Truck Driver hit P. P sues Driver and Employer, Employer pays. Employer can seek 100% from Driver.

vs.

Contribution - (when all D’s are active participants)

• Traditionally, Paying D recovers proportional shares from others.
• Comparative - recovery based on relative fault.

Question 6

Wrongful Death & Survivor Actions

Answer 6

NOT separate cause of action, simply labels for applying other torts after death.

Wrongful death - lawsuits brought by decedent’s beneficiaries (children, spouse) for their own loss of support or companionship.

Survival actions - lawsuits brought by decedent’s estate based on claims that deceased could have brought himself.

(same defenses still apply, since same tort rules are followed)

Question 7

Immunity: family, gov, charity

Answer 7

Family - maj - doesnt recognize

Gov. - Generally there is sovereign immunity. There is no immunity where gov. is performing a proprietary function (service normally carried out by private party).
Gov. retain immunity if discretionary (decision making).

Charity - no immunity (maj).