T15 - Vicarious

Question 1

VICARIOUS LIABILITY AND OTHER MISCELLA- NEOUS CONSIDERATIONS

Answer 1

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Question 2

VICARIOUS LIABILITY

Answer 2

Vicarious liability is liability that is derivatively imposed.
This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.

The basic situations that you should note:
•Employer-Employee
•IndependentContractorSituations
•Partners and Joint Venturers
• Automobile Owner for Driver
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Question 3

Active tortfeasor

Answer 3

Party whose affirmative conduct caused the harm

Question 4

Passive tortfeasor

Answer 4

Party held vicariously liable based on relationship to active tortfeasor

Question 5

Employer/Employee

Answer 5

Empr can be held liab le if emppoyee was acting within scope fo employment at time of accident
An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship.
AKA “doctrine of respondeat superior.”

a. Frolic or Detour: Where accident occured during period of time when emp stepped out.
- Minor departer: Mere detour = employer liable
An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment.
- Major departur: Frolic of his own. Emp’r not liable.
If the deviation in time or geographic area is substantial, the employer is not liable.

b. Intentional Torts
Intentional torts: Are generally OUTSIDE the scope of employment. It is usually held that intentional tortious conduct by employees is not within the scope of employment.
Exceptions:
• The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy. Intentional torts CAN be within scope of emp’t if emm’ee actingn to further emp’rs purposes.
• Force is authorized in the employment, for example, a bouncer. If occupation involves authorization to use physical force, misues of that force is within scope of emp’t.
• Friction is generated by the employment, for example, bill collector.

RULE: While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer.

c. Liability for Own Negligence
Employers may be liable for their own negligence by negligently selecting or supervising their employees. (This is not vicarious liability.)

Question 6

Independent contractor/hiring party

Answer 6

Hiring party generally NOT liable for torts committed by IC. In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent).

EXCEPTION: Business owner can be held liable if IC working on biz premises and hurts customer.
For situations where a duty is simply nondelegable due to public policy considerations, for example, the duty of a business to keep its premises safe for customers.
The general rule that a principal will not be vicariously liable for the acts of its independent contractor’s agent is subject to several broad exceptions, including one for duties that are nondelegable because of public policy considerations. One of these duties is the duty of a business to keep its premises safe for customers. Hence, a business would be liable for the negligence of an employee of an independent contractor to the same extent as for the negligence of its own employee.

a. Liability for Own Negligence
The employer may be liable for their own negligence in selecting or supervising the independent contractor (for example, a hospital may be liable for contracting with an unqualified and incompetent health care provider who negligently treats the hospital’s patient). (This is not vicarious liability.)

Question 7

Partners and Joint Venturers

Answer 7

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Question 8

Automobile Owner for Driver

Answer 8

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances.

a. Family Car Doctrine
In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.

b. Permissive Use
A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent. However, under a federal statute, rental car companies are not vicariously liable for the negligent accidents of their customers even if they do business in a “permissive use” state.

c. Liability for Own Negligence—Negligent Entrustment
An owner may be liable for their own negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so. (This is not vicarious liability.)

d. Driver Acting as Agent for Owner
The car owner will be liable if the driver is acting as the owner’s agent, for instance using the car to perform an errand for the owner.

Question 9

Bailor for Bailee

Answer 9

Under the general rule, the bailor is not vicariously liable for the tortious conduct of their bailee.

a. Negligent Entrustment
As above, the bailor may be liable for their own negligence in entrusting the bailed object. (This is not vicarious liability.)

Question 10

Parent for Child

Answer 10

A parent is not vicariously liable for the tortious conduct of their child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (for example, $10,000).

a. Child Acting as Agent for Parents
Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.

b. Parent Liable for Own Negligence
The parent may be held liable for their own negligence in allowing the child to do something, for example, use a dangerous object without proper instruction. Furthermore, if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.

Question 11

Tavernkeepers

Answer 11

a. Common Law
No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct.

b. Modern Law
Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Question 12

Even if the defendant is not vicariously liable, the plaintiff may prevail if…

Answer 12

the defendant personally was negligent in supervising the person causing the injury or
in entrusting a dangerous object to someone not equipped to handle it.

Question 13

Negligent Hiring (this is NOT vicarious liability, it is a direct action against employer)

Answer 13

An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the D’s retention of the employee under these circumstances may be a breach of that duty.

An employer can be held directly liable for the intentional tort of an employee if it was foreseeable and the employer was negligent in hiring or retaining the employee.

Question 14

MULTIPLE DEFENDANT ISSUES

Answer 14

• Joint and Several Liability
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Question 15

Joint and several liability

Answer 15

P can recover FULL damages from any D that P chooses.

Joint and several liability allows the plaintiff to recover ALL of his damages from ONE of the joint tortfeasors

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an INDIVISIBLE injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred).
If the injury is divisible, each defendant is liable only for the identifiable portion.

a. Defendants Acting in Concert: When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.

b. Statutory Limitations: Many states have abolished joint liability in cases based on fault either
(1) for those Ds judged to be less at fault than the P, or
(2) for all Ds regarding noneconomic damages. In these cases, liability will be proportional to the D’s fault.

Question 16

Satisfaction and Release

Answer 16

a. Satisfaction
Recovery of full payment is a “satisfaction.” Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties.

b. Release
In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Question 17

if p sues multiple Ds and wins

Answer 17

J&S liability: joint and several liability allows the plaintiff to recover all of his damages from one of the joint tortfeasors

Question 18

Contribution and Indemnity.

Types?

Answer 18

***contribution rules apply only to a defendant who HAS PAID the FULL judgment to the P and is seeking contribution from another tortfeasor; they have NO RELEVANCE to the P’s recovery against the D!
Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.

These deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay.

Question 19

Indemnification:

Answer 19

Full reimbursement to out-of-pocket Defendant.
Available:
• Vicarious liab
• Strict Liab (retailer found SL, but retailer was not the manufacturer)

b. Indemnification: Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances:
• In vicarious liability situations
• Under strict products liability for the non-manufacturer

Question 20

c. Comparative Contribution

Answer 20

Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

Question 21

Loss of consortium

Answer 21

Claim by spouse of injured party, derivative of injured party’s claim.
• Loss of Household services
• Loss of soiety/companionship
• Loss of sex

Between Spouses
Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.

Parent-Child
A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent.

Nature of Action
Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Question 22

SURVIVAL AND WRONGFUL DEATH

Answer 22

Survival of Tort Actions
Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death.

Wrongful Death
Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. Hence, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a poten- tial beneficiary’s contributory negligence reduces their share of the recovery in comparative negligence states.

Question 23

TORT IMMUNITIES

Answer 23

• Intra-Family Tort Immunities
• Governmental Tort Immunity

Question 24

Intra-Family Tort Immunities

Answer 24

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished spousal immunity. A slight majority have also abolished parent-
child immunity (but generally do not allow children to sue merely for negligent supervision). Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct, or (2) automobile accident cases to the extent of insurance coverage.

Question 25

Governmental Tort Immunity

Answer 25

In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to govern- mental, not proprietary, functions.

a. Federal Government
Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for
(1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander,
(8) misrepresentation and deceit, and (9) interference with contract rights. Immunity is also not waived for acts that are characterized
as “discretionary” (those involving considerations of political or economic policy, usually made by senior officials); acts termed “minis- terial” (those performed at the operational level of government) are not immune from liability.

b. State Governments
Most states have substantially waived their immunity to the same extent as the federal government; hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.

c. Local Governments
About half of the states have abolished municipal immunity to the same extent as for the state government. Where municipal immunity has been abolished, the “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, because the provision of fire protection services is a public duty. Where municipal immunity still exists, contrast “governmental” functions (functions that could only be performed adequately by the government) and “propri- etary” functions (functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by not granting it for proprietary functions.

d. Immunity of Public Officials
Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Question 26

Charitable Immunity

Answer 26

The majority of jurisdictions have eliminated charitable immunity.

Question 27

Contribution.

Types?

Answer 27

a. Contribution: The rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault.

• Methods of Apportionment
  — Comparative Contribution: Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants.
  — Equal Shares: In a minority of states, apportionment is in equal shares regardless of degrees of fault.
  — Traditional contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault, while states with a comparative contribution system impose contribution in proportion to the relative fault of the various defendants.
• Contribution Tortfeasor Must Have Liability: The contribution D must be originally liable to the P. If the contribution D has a defense that would bar liability (such as intra-family tort immunity), they are not liable for contribution.
• Not Applicable to Intentional Torts: Contribution is not allowed among intentional tortfeasors.

*For contribution to apply, generally both Ds must have a measurable degree of culpability for the tort; on the other hand, indemnity usually applies when the paying D is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant.