Liability for the Acts of Others, Multiple Defendant Issues

Question 1

Vicarious and Direct Liability

Answer 1

a) Employer/Employee or Principal/Agent
b) Independent Contractor
c) Parents and Children

Question 2

Vicarious & Direct Liability

a) Employer/Employee or Principal/Agent

Answer 2

Gen Rule - Employers or principals are vicariously liable for torts of their employee or agent if the tort is committed within the scope of employment

(i) Intentional torts are usually outside of the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable
(ii) Direct Liability: The principal or employer could be liable for his own negligence for failure to supervise or negligent entrustment.

Question 3

Vicarious & Direct Liability

b) Independent Contractor

Answer 3

Gen Rule - A principal is NOT usually liable for torts of his independent contractor. The less control that an employer has over a worker, the more likely they are an independent contractor rather then an employee.

When can the employeer be liable for acts of the independent contractor?

1. Nondelegable duty or inherently dangerous activity - ex landlord has nondelegable duty to keep her presmises in safe condition.
2. Direct Liability - keep in mind that a principal may be liable for his own negligence in hiring, firing, or supervising his employee or agent (hiring 14 yr old w/o checking his age)

NOTE - An employer is not vicariously liable for the torts of his customers (but hemay be directly liable for his own negligence).

Question 4

Vicarious & Direct Liability

c) Parents and children

Answer 4

Gen Rule - there is no vicarious liability. However, keep in mind that the parent may be liable in his own right for negligence (direct liability, not vicarious)

Question 5

Multiple Defendants

Answer 5

1. Majority Rule: Joint and Several Liability
2. Several Liability
3. Indemnity

Question 6

Multiple Defendants

1. Majority Rule: Joint and Several Liability

Answer 6

Applies on MBE unless stated otherwise

Joint and several liability - means that the plaintiff can recover the ENTIRE damages amount from either defendant (but cannot recover twice)

Contribution - If defendants are jointly and severally liable and on defendant pays the entire amount of damages owed, then he can seek the % owed by the other defendants

NOTE - Joint and several liability does not apply if the harm to the plaintiff is apportionable and if the defendants were not acting in concert

Question 7

Multiple Defendants

2. Several Liability

Answer 7

Each defendant is only liable for her percentage of fault.

MICHIGAN - follows “several liability” and as such, each defendant is liable for only his or her percentage of fault. There are still cases where joint and several liability exists (medical malpractice, products liability)

Question 8

Multiple Defendants

3. Indemnity

Answer 8

This is when defendant can seek 100% of the damage from the other defendant. This usually occurs when there is one obviously “actively negligent” party. Usually this is seen in two scenarios:

1. Vicarious liability - If employer is sued after his employee negligently trips a customer, the employer could seek undemnity from the employee.
2. Products liability - if the retailer is sued in strict liability they may seek indemnity all the way up the chain until the manufacturer ultimately pays.