Respondeat Superior Flashcards
Elements of
1 Front-line D was “an employee” of “employer”-D, and
2 Front-line D was acting “in the scope of employment”, and
3 Front-line D acted negligently (or otherwise tortiously) injuring P.
Scope of Employment
1 Conduct of a servant is within the scope of employment if, but only if:
A it is of the kind he is employed to perform;
B it occurs substantially within the authorized time and space limits;
C it is actuated, at least in part, by a purpose to serve the master, and
D if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
2 Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Kind of Conduct within Scope of Employment
1 To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
2 In determining whether or not the conduct … is so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
A whether or not the act is one commonly done by such servants;
B the time, place and purpose of the act;
C the previous relations between the master and the servant;
D the extent to which the business of the master is apportioned between different servants;
E whether or not the act is outside the enterprise of the master
Forbidden Acts
An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.
Criminal or Tortious Acts
An act may be within the scope of employment although consciously criminal or tortious.
Failure to Act
The failure of a servant to act may be conduct within the scope of employment.
Definition of Servant
1 A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
2 In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
A the extent of control which, by the agreement the master may exercise over the details of the work;
B whether or not the one employed is engaged in a distinct occupation or business;
C the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
D whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
E the skill required in the particular occupation;
F the length of time for which the person is employed;
G the method of payment, whether by the time or by the job;
H whether or not the work is a part of the regular business of the employer;
I whether or not the parties believe they are creating the relation of master and servant; and
J whether the principal is or is not in business.
When Master is Liable for Torts of His Servants
2 A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
A the master intended the conduct or the consequences, or
B the master was negligent or reckless, or
C the conduct violated a non-delegable duty of the master, or
D the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
Work Done in Public Place
One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.
Repairs Which Lessor is Under a Duty to His Lessee to Make
A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor; failure to exercise reasonable care to make the land reasonably safe.
Work on Buildings and Other Structures on Land
A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure
A while the possessor has retained possession of the land during the progress of the work, or
B after he has resumed possession of the land upon its completion.
Making or Repair of Instrumentalities Used in Highly Dangerous Activities
One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully constructed and maintained, and who employs an independent contractor to construct or maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities as though the employer had himself done the work of construction or maintenance.
Precautions Required by Statute or Regulation
One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the other for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.
Negligence Collateral to Risk of Doing the Work
Except as stated in …, an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if
A the contractor’s negligence consists solely in the improper manner in which he does the work, and
B it creates a risk of such harm which is not inherent in or normal to the work, and
C the employer had no reason to contemplate the contractor’s negligence when the contract was made.
