Miscellaneous (vicarious liabiilty, joint & several, loss of consortium)

Question 1

Vicarious liability predicated on 5 relationships

Answer 1

Employer & employee, hiring party and independent contractor, owner and driver of car, parents and children, tavernkeepers

Question 2

Employer and Employee liability

Answer 2

ER is vicariously liable if the tort was within the scope of employment.
i. intentional torts commited by EEs—usually outside the scope of employement and so no vicarious liability.
3 times intentional tort IS within scope
1. force is part of job, and EE abuses authority. like security guard or bouncer for club.
2. job that generates friction/ animosity. debt collector or repo man.
3. anything motivated by a desire to serve the boss’ agenda. security guard wants to be a good employer and does a patdown for every other person.

Question 3

Hiring party and independent contractor

Answer 3

i. NO vicarious liability

ii. exception: independent contractor hurts an invitee or is engaged in inherently dangerous dutie

Question 4

Parents and children

Answer 4

i. parents not vicariously liable for torts of kids. no exceptions.

Question 5

Tavernkeepers

Answer 5

i. common law—no liability for letting someone drink and drive
ii. now, many Dramshop acts—COA against the tavernkeeper
1. only if the tavernkeeper excersised ordinary negligence.

Question 6

Co∆s and joint and several liability

Answer 6

a. joint and several—can get all the money from any one ∆.
i. after the π gets all the money from one ∆, that ∆ can then ask for contribution—his share of damages back from the other ∆s.
ii. but that ∆ can look to co-∆s to adjust burden of paying judgment. comparative contribution. jury assigns a % equal to degree of fault. one ∆ can get back the relevant amount of blame. too easy to test.

b. indemnities that survive comparative contribution
i. vicarious liability—can get fully repaid (indemnified) from the original tortfeasor, for ex, from your employee
ii. products liability cases—retailer can get indemnity from the manufacturer

iii. if ∆s acted in concert—each is jointly and severally liable.

Question 7

Loss of consortium

Answer 7

a. if victim of tort is married, the uninjured spouse gets same cause of action against all of the ∆s.
b. derivative claims. any ∆s in the primary litigation also apply in the secondary lawsuit by the uninjured spouse.
c. meant to allow for types of damage otherwise uncompensated
i. loss of household services. no one to cook/ mow lawn. may have to hire someone else
ii. loss of society—society = companionship
iii. loss of sex—spouse injured so cant have sex.
d. must prove all of these damages
i. if you have a household staff—no damages
ii. if you have bad relationship—no damages for loss of society/ sex
e. parent can bring action for loss of consortium for loss of child, but child can’t do it for parent.

Question 8

Tort immunities

Answer 8

a. most states have abolished husband-wife immunity. spouses can sue each other.
b. majority have abolished parent-child immunity kids and parents can sue each other. (but kid cant sue for negligent supervision).

c. governmental tort immunity
i. fed government has waived immunity. but will still attach for
1. assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel or slander, misrepresentation and deceit, interference with k rights

ii. state governments have waived a lot of immunity like the feds
iii. municipal immunity –
1. also mostly abolished

2. duty owed to public as a large is not owed to a particular citizen absent a special relationship bw that body and the citizen

iv. public officials are immune for discretionary acts done without malice or improper purpose
v. charities aren’t immune