Third Party Issues Flashcards
Vicarious Liability (Respondeat Superior)
Exists when one person commits a tortious act against a 3rd party and another person is liable to the 3rd party for this act.
Employee/Independent Contractor?
The extent of liability depends on whether the tortfeasor was an employee of the D or an independent contractor. Factors to consider:
- Length of time of the employment;
- Who provides the tools, instrumentalities, and place of work;
- Method of payment;
- The degree of skill and judgment required.
Employee
If employer exercises the right to control the manner and means of the work, the one employed is an employee. An employer will be vicariously liable for tortious acts committed by his employee if committed within the scope of employment.
Independent Contractor
If the employer directs only the result, and the party employed is free to determine the manner and means of the work, he is an independent contractor. An employer will not be vicariously liable for the tortious conduct of an independent contractor, unless the contractor was hired to undertake inherently dangerous activity or a non-delegable duty.
Vicarious Liability for Intentional Torts
Intentional Tortious conduct by employees is not within the scope of employment, unless:
- Force is authorized in the employment (bouncer).
- Friction is generated by the employment (bill collector)
- The employee is furthering the business of the employer
Frolic and Detour
An employee making a minor deviation from his employer’s business for his own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable.
Independent Contractor-Inherently Dangerous Activity
If the work is inherently dangerous, the employer has a duty to see that the work is done w/reasonable care even if it is done by an independent contractor. The employer may be liable for their own negligence in selecting or supervising the independent contractor (but this isn’t vicarious liability).
Partners and Joint Ventures
Each member is vicariously liable for the other members’ tortious acts committed within the scope and course of their partnership or venture.
Parent/Child Relationship
Parents generally not vicariously liable for child’s conduct, but may be held liable for their own negligence in allowing the child to do something.
Innkeepers/Guests
Sometimes based on negligence can be vicariously liable.
Tavernkeepers
Common law: No liability.
Modernly: Many states have enacted Dramshop Acts that create a COA in favor of any third person injured by the intoxicated vendee.
Joint and Several Liability
Where two or more tortfeasors combine to proximately cause a single indivisible injury, each actor will be jointly and severally liable, meaning that each can be held liable for 100% of the damages. Ds have the burden of proving the injury is divisible. If they prove the injury is divisible, the damages will be apportioned according to fault.
Satisfaction and Release
Satisfaction: Recovery of full payment is a satisfaction. Only one is allowed. Until it exists, one may proceed against all jointly liable parties.
Release: Modernly, a release of one tortfeasor doesn’t discharge other tortfeasors unless expressly provided in the release agreement.
Contribution
This allows a D who pays more than his share of damages under J&SL to have a claim against other joint tortfeasors for the excess.
Indemnity
Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: 1. by K, 2. in vicarious liability situations, 3. under strict products liability, and 4. where there has been an identifiable difference in degree of fault.
