Respondet Superior

Question 1

Definition

Answer 1

1. Whether a negligent employee was acting within the scope of employment.
2. P has to prove the employee’s underlying negligence
3. A form of strict liability.

Question 2

Riviello: The doctrine of respondeat superior renders a master

Answer 2

vicariously liable for a tort committed by his servant while acting within the scope of his employment.

Question 3

Employees act within scope of employment IF:

Answer 3

1. It is of the same general kind as authorized or expected;

                                       AND

2. Employee is acting within authorized space and time limits.

Question 4

Fruit: Purpose Test

Answer 4

Is an employee motivated by the purpose to serve the employer?

A number of courts reject this

Question 5

Special Rules Regarding Commuting: Going and Coming Rule

Answer 5

General Rule

1. Commuting employees are ordinarily outside the scope of employment.
2. The employment relationship is suspended once an employee leaves work.

Ask this
Does the commute involve some benefit to the employer that is not common to commuting?

Question 6

Going and Coming Rule: Exceptions

Answer 6

1. Where the employee is on call
2. Where the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work related tasks
3. Where the employer instructs the employee to carry out some job related errand during the commute
4. Where the commute serves a dual purpose for both the employer and the employee.

Question 7

What is it called when an employee is going to a place not associated with employment for a purpose not associated with employment?

Answer 7

Frolic

Question 8

When does a frolic end?

Answer 8

Look for “re-entry”.

Which occurs when an employee is reasonably near authorized space/time limits of work, and is acting with an intent to serve the employer’s business.

Question 9

What is a Detour?

Answer 9

A minor departure from an employee’s duties but is still considered acting within the scope of employment.

Question 10

What is the general rule when an intentional tort is involved?

Answer 10

An employer is NOT liable for an employee’s intentional torts.

There can be liability in SOME cases. i.e. Rodebush

Question 11

Conduct: Rule Statement

Answer 11

1. Required by or incidental employee’s duties; OR

2. It is reasonably foreseeable in light of E’s business.

Question 12

“Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of ____; it becomes a question of ____, however, when. . .

Answer 12

‘the facts are undisputed and no conflicting inferences are possible.’”

Question 13

For the employer to be liable for an intentional tort, the employee’s act must have a. . .

Answer 13

Causal nexus to the employer’s work.

Question 14

Causal Nexus Factors

Answer 14

1. The incident leading to the injury must be an outgrowth of the employment;
2. The risk of tortious injury must be inherent in the working environment;
3. The risk must be typical OR broadly incidental to the employer’s business;
4. The tort was a generally foreseeable consequence of the employer’s business.

Question 15

Montague Conduct Test: The conduct of an employee falls within the scope of his or her employment if the conduct either:

Answer 15

(1) Is required by or incidental to the employee’s duties; OR
(2) It is reasonably foreseeable in light of the employer’s business.

Question 16

True or False: Employment that brings a tortfeasor and victim together in time and place is not enough when establishing liability for a claim.

Answer 16

True

Question 17

Public Policy Factors: Respondeat Superior

Answer 17

(1) to prevent recurrence of the tortious conduct;
(2) to give greater assurance of compensation for the victim; AND
(3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.

Question 18

Independent Contractors(IK) - Underlying conduct was negligence on the part of an IK: General Rule

Answer 18

No respondeat superior liability on E for negligence of IK.

Question 19

IK General Rule Factors

Answer 19

1. IK is not the same as an employee;
2. E has no right of control over manner of doing the work;
3. Manner of doing the work is the IK’s enterprise.

Question 20

Exceptions to the general rule of E’s nonliability for IKs

Answer 20

1. Whether E retains control of manner and means of doing work [as differentiated from overseeing the result of the work]; OR
2. Engages an incompetent K’r; OR
3. Activity contracted for is inherently dangerous [involving peculiar risk].

Question 21

Enterprise Liability: Theory

Answer 21

1. Price of goods and activities should accurately reflect the accident costs they cause.
2. Holding an enterprise strictly liable for harms it causes facilitates this internalization of costs
3. Which in turn reduces the costs of accidents.
4. Companies will thus have an incentive to make their products and activities safer to compete in the marketplace.