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Question 1

If one defendant can’t pay in a several liability situation, what happens?

Answer 1

The plaintiff suffers the loss, but some jurisdictions allow reallocation so the unpaid portion is reallocated between the other defendants

Question 2

What is indemnification?

Answer 2

Total reimbursement from another tortfeasor when the defendant was only technically liable, and the other was far more culpable

Question 3

Essentially indemnification does what?

Answer 3

Completely shifts the defendant’s liability to the other tortfeasor

Question 4

When do you most often see indemnification?

Answer 4

In respondent superior situations (like where a retailer is held liable for defective products sold by a manufacturer)

Question 5

Why is indemnification not usually necessary anymore?

Answer 5

Because comparative fault is so widely used

Question 6

Under indemnification, how can the defendant recover from other defendants?

Answer 6

If their conduct with more wrongful than his

Question 7

What is the jurisdictional view of indemnification that involves both active and passive wrongdoing?

Answer 7

Active wrongdoers are more wrongful than passive wrongdoers

Question 8

What is an example for indemnification where an active wrongdoer would be more culpable than a passive one?

Answer 8

Manufacturer that makes a defective product would be more wrongful than a retailer that sold the product without discovering the defect

Question 9

What is respondeat superior?

Answer 9

Employers are liable for the actions of their employees within the scope of their employment regardless of whether they were committed in the employer’s presence or not

Question 10

What does it mean for an action that is committed within the scope of one’s employment?

Answer 10

Something so closely connected with what the employee was hired to do and fairly and reasonably incidental to it that the employee is thought of as carrying out the objectives of the employment

Question 11

Who can be held vicariously responsible for one another’s torts?

Answer 11

Partners and people acting in joint enterprises that are acting in furtherance of the partnership

Question 12

If an act is incidental to the employment relationship, like going to the bathroom while at work, is that within the scope of the employment?

Answer 12

Yes

Question 13

Are intentional torts committed by an employee while at work within the scope of employment to be considered for respondent superior?

Answer 13

Usually no, but if an employee uses force to further the employer’s purpose, that can result in vicarious responsibility

Question 14

What are some things that would be considered “outside the scope of employment” for respondeat superior?

Answer 14

Commuting to and from work

Question 15

When would an employer be responsible for his employee’s torts if they come from duties that involve the use of physical force on others for the job?

Answer 15

Bodyguards or debt collectors

Question 16

If a company has rules that forbid certain conduct, and an employee does that thing, resulting in respondeat superior liability, can that mean the employer escapes responsibility?

Answer 16

Usually no

Question 17

Can an employer be liable for respondeat superior when their employee is immune?

Answer 17

Yes, but it first has to be shown that the employee was acting tortiously

Question 18

If you are a delivery person on route, and you stop at a drugstore to get drugs for your child, is that within the scope of the employment enough to make your employee responsible?

Answer 18

Probably, but if you go out of your way and have an accident, probably not

Question 19

What is liability if an independent contractor is involved?

Answer 19

Defendant is not liable for torts by independent contractors he employs, because he has no right to control that person’s activity

Question 20

What is an exception to the independent contractor rule?

Answer 20

Defendant can be vicariously liable if the contractor:

• undertakes duties he isn’t legally allowed to do
• engages in inherently dangerous activities
• D is an owner/occupier and contractor injures defendant’s business invitee
• D gives contractor authority to act for him and plaintiff reasonably believes contractor is an employee/agent of the employer

Question 21

If you contract out work that involves a high risk of harm to the public, and it isn’t performed carefully, what is the liability?

Answer 21

The employer can be liable because he engaged in an independent person to do the job

Question 22

If you have a contractor overhaul your airplane engine, and he doesn’t do it right, who is liable?

Answer 22

You are because of how serious the risk is

Question 23

Where does liability lie for issues involving separate injuries?

Answer 23

If the plaintiff negligently crashes into a tree and is injured, then the doctor paralyzes her, he is liable only for the enhancement of the injury, not the initial injury itself

Question 24

When are partners and joint venturers vicariously liable for each other’s torts?

Answer 24

If they were committed in the course and scope of the partnership/venture

Question 25

What is a partnership?

Answer 25

Legal relationship formed by an agreement between two or more people to operate a business for profit

Question 26

What is a joint venture?

Answer 26

Partnership of limited scope and duration that is present when two or more people engage in concerted activity with the mutual right to control for a common purpose

Question 27

What is the split about automobile trip liability?

Answer 27

• some courts: it is joint enterprise when a rider and driver share expenses of a trip and take turns driving
• others: it is not joint enterprise unless a business purpose was involved

Question 28

If two people are sharing expenses of a trip and taking turns driving, and there is an accident, and it is considered a joint enterprise, where does liability lie?

Answer 28

With either party, regardless of who was driving

Question 29

What are the different situations that vicarious liability would apply to?

Answer 29

• autos and drivers
• parent-child
• tavern keepers
• employer-employee

Question 30

What are the two different views on vicarious liability for vehicles and drivers?

Answer 30

• traditionally: an owner of a vehicle is not vicariously liable for someone’s act that is driving his car with his permission
• modernly: liability is imposed when the person driving is a member of the owner’s family/household, and sometimes when the person drives the car with the owner’s permission

Question 31

What does several liability mean?

Answer 31

Every defendant is only liable for their share of the injury