Intro to Torts/Vicarious Liability

Question 1

Doctrine of Respondeat Superior

3 Step Analysis

Answer 1

1. Is there an employer/employee relationship? Y
2. Is this person an independent contractor? N
3. Was this person performing a non-delegable duty? N

Question 2

Three Economically Based Justifications for Vicarious Liability (according to Gary Schwartz)?

Answer 2

1. Gives employers incentive to shrewdly select employees to reduce negligence
2. Give employers incentive to discipline careless employees
3. Gives employers incentive to find alternative ways to perform task other than employees (mechanization)

Question 3

Exceptions to Respondeat Superior

Answer 3

1. Independent contractor is not an employer/employee situation, doesn’t apply (Unless there is apparent agency/authority)
2. Non-delegable duty: legal duty that can’t be passed off or assigned to another

Question 4

Birkner Standard

Answer 4

1. Employee must be doing something that they are hired to do
2. Employee’s conduct must be within the hours and spatial boundaries of the employment
3. Employee must be motivated, at least in part, by the purpose of serving the employer’s interest
   - Christensen v. Swenson

Question 5

Christensen v. Swenson

Answer 5

F: D left work on lunch break. While on break, caused an accident.
I: Was D’s employer vicariously liable
H: Yes. Used Birkner Std. & found that D was acting within scope of employment.

Question 6

Hammontree v. Jenner

Answer 6

F: Epileptic D drove car into P’s bike shop. P sued under theory of strict liability.
I: Was D strictly liable?
H: No. Can’t compare human with “defect” to product with defect. Also no case for negligence (he couldn’t have foreseen the accident)

Question 7

Holmes Critique of Strict Liability

Answer 7

• The person needs to have the ability to make a choice to be liable
• Someone should only be held liable if through negligence they made a choice via CBA, where the costs exceed the benefit.

Question 8

Universal Insurance Policy Proposal

Answer 8

• Would cover accidents where the causer of damage is not liable (Hammontree v. Jenner
• BUT, insurance companies would like discriminate and charge people with disabilities more

Question 9

Apparent Agency Test (from Roessler v. Novak)

Answer 9

Case: P sued hospital after doctor (independent contractor) provided wrong diagnosis.

1. A representation by the purported principal (Hospital)
2. A reliance on that representation by a third party (P)
3. Change in position by the third party in reliance on the representation (P’s injuries)