Misc - Vicarious Liability, Malicious Prosecution

Question 1

Vicarious Liability

Answer 1

Employer vicariously liable for employee’s torts committed within scope of employment

Principal NOT liable for independent contractor’s torts unless (a) contractor involved in inherently dangerous activities or (b) principal’s duty is nondelegable on basis of public policy

Employee v. Independent Contractor
* Short/definite vs. long/indefinite employment
* Personal task vs. for business
* Compensation is task-based vs. time-based
* What parties believed relationship was

Question 2

Malicious Prosecution Tort

Answer 2

To prove malicious prosecution, must show:

(i) D brought criminal/civil proceedings against P
(ii) P won in prior proceedings
(iii) no probable cause in prior proceeding
* insufficient facts for reasonable person to believe P was liable (harder to show in civil case than criminal case)

(iv) improper purpose behind D’s lawsuit
* D’s primary purpose in suing P wasn’t based on obtaining justice or legal redress (ex. it was to teach P a lesson)

(v) damages
* Damages for all harms proximately caused by D’s conduct + punitive damages (if D’s act constitutes malice)