Liability for Acts of Others, Multiple Defendant Issues Flashcards
1) Vicarious and direct liability
a) Employer/employee or principal/agent
i) Vicarious liability
(1) Employers or principals are vicariously liable for torts of their employee or agent if the tort is committed within the scope of employment.
(2) Note: intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.
(a) Ex.: A security guard at a store uses excessive force to detain a person committing larceny. The purpose was to serve the employer and the store will be vicariously liable. Further, this is foreseeable.
ii) Direct liability: the principal or employer could be liable for his own negligence for failure to supervise or for negligent hiring, firing, or entrustment.
1) Vicarious and direct liability
b) Independent contractor liability
i) General rule: A principal is not generally liable for torts of his independent contractor because he has less control over the independent contractor. The less control that an employer has over a
worker, the more likely they are to be an independent contractor rather than an employee.
ii) Exceptions: When may the principal be liable for the acts of the independent contractor?
(1) Nondelegable duty or inherently dangerous activity:
(a) Example of a nondelegable duty: A landowner has a nondelegable duty to keep her premises in safe condition. Thus, if the contractor she hires is negligent and someone is injured on the premises as a result, the landowner will be liable.
(2) Direct liability: A principal may be liable for his own negligence in hiring, firing, or supervising his agent. This is direct liability.
(a) Ex.: A pizza delivery company hires a 14-year-old as an independent contractor to deliver pizza without inquiring as to his age or doing a background check. If the 14-year-old gets into an accident, the pizza company may be directly liable for failing to do a background check.
iii) Note: an employer is not vicariously liable for the torts of his customers (but he may be directly liable for his own negligence).
1) Vicarious and direct liability
c) Parents and children:
In general, parents are not vicariously liable for the acts of children. However, keep in mind that the parent may be liable for his own negligence (this would be direct liability, not vicarious).
2) Multiple defendants: joint and several liability vs. several liability
a) Majority rule: joint and several liability (applies on the MBE unless stated otherwise)
i) “Joint and several liability” means that the plaintiff may recover all of his damages from either defendant (but cannot recover twice!).
ii) Note that joint and several liability does not apply if the harm to the plaintiff is apportionable and if the defendants were not acting in concert.
(1) Ex.: Tyler negligently trips Marla. Marla falls on her face and breaks her nose. Brad then negligently steps on Marla’s hand and breaks her hand. Because these harms are distinct from one another, the defendants will not be jointly and severally liable.
(2) Ex.: Tyler negligently hits Marla with his car. Soon after that, Brad negligently hits Marla with his vehicle. She suffers a few broken bones but it is unclear which collision caused the injuries. Because the injuries caused are not distinct, the defendants will be held jointly and severally liable for her harm.
(3) Ex.: Tyler negligently hits Marla with his car. Marla has a concussion and is knocked unconscious. Then, Brad negligently hits Marla with his car and she breaks her hand as a result. Tyler is liable for the first injury as well as the second injury since it is foreseeable that a car accident could cause a subsequent accident. Brad is also liable for the broken hand but not the initial injury. If Tyler pays the full amount of damages, Tyler may seek contribution from Brad.
(4) Ex.: Tyler and Brad both negligently drag race their cars. Tyler hits Marla with his car. Both defendants will be jointly and severally liable because they were acting in concert.
2) Multiple defendants: joint and several liability vs. several liability
b) Several liability:
Each defendant is only liable for his percentage of fault.
3) Right to recover from co-defendants: contribution vs. indemnity
a) Contribution: if defendants are jointly and severally liable and one defendant pays the entire amount of damages owed, then he can seek the percentage owed by other defendants (this is called contribution—i.e., the defendant is “contributing” to the total damages amount).
b) Indemnity: This is when one defendant can seek 100% of the damages from the other defendant. This usually occurs when there is one obviously “actively negligent” party. This is generally seen in two scenarios:
(1) Vicarious liability: for example, if an employer is sued after his employee negligently trips a customer, the employer could seek indemnity from the employee, the actively negligent party.
(2) Products liability: if a retailer is sued in strict liability, they may seek indemnity all the way up the chain until the manufacturer ultimately pays.
