MISCELLANEOUS TORT CONCEPTS

Question 1

When does vicarious liability arise?

Answer 1

• Where an employer is being held liable b/c of an employee’s tortous conduct w/in the scope of employment
• If employee is negligent w/in scope of employment, employer lvicariously liable through respondent superior (b/c of their relationship)
  
  • employer can seek indemnity from the employee (rarely done)

Note - Employer also be directly liable if negligent hiring

Question 2

Are employers vicariously liable for an employee’s intentional torts?

Answer 2

• Generally - intentional torts outside the scope
• EXCEPTION
  
  • Where the employee believes (regarless how unreasonable) he is acting to benefit his employer

Question 3

Are employers vicariously liable for independent contractors?

Answer 3

Generally - individual who hires independet contractor is not vicariously liable for the negligence of the IC

Question 4

How to determine if someone is an independent contractor or an employee?

Answer 4

• Look @ whether the person who hires them dictates the:
  
  • means
  • method and
  • manner
• More control, more likely they are an employee

Question 5

Are parents vicariously liable for the negligent act of a child?

Answer 5

• Generally no absent a statute
• Cane be liable for their own direct negligence:
  
  • negligent supervision
  • negligent entrustment

Question 6

What are alternate claims that can arise out of a tort action?

Answer 6

• Survival Action
• Wrongful death
• Loss of consortium

NOTE - At common law, the life of an action or the ability to start an action ends with the death of the victim or the tortfeasor

Question 7

What is a survival statute?

Answer 7

The death of the victim or tortfeasor does not end the action, the estate can still bring an action

Question 8

What is a wrongful death action?

Answer 8

• the statutory heirs can bring an action for wrongful death for their own injury
  
  • the loss they suffer
  • the pecuniary economic loss as a result of the tortious action
  • loss of comfort & companionship

Question 9

What is loss of consortium?

Answer 9

• where the tortfeasor as seriously injured the other spouse
• intangible injuries, lost of comfort & compaionship, & access to sexual relations
• some cts expand to also include, children & parents