Tort Liability Flashcards
when can P be liable in tort?
Employee-Agent: Direct and Vicarious Liability
Non-Employee Agent (IC): Direct Liability (rare, VL based on apparent authority)
P subject to direct liability by 3rd party for A’s conduct when:
1) A acts within actual authority to commit tort or when P later ratifies conduct.
2) P is negligent in selecting, training, retaining, supervising, or otherwise controlling A.
3) activity engaged in by A is inherently dangerous
what is the rule demonstrated in Majestic Realty Associates v. Toti Contracting?
landowner is liable for its IC’s torts when the IC performs work that is inherently dangerous or ultra-hazardous.
Wrecking ball case. Parking authority was responsible for ensuring that Toti took precautions to ensure safe operations and the did not (thus, liable).
Inherently dangerous: activity that can be carried on safely by using special skill and care, but that involves a grave risk of danger to persons or property if negligently done.
Ultra-hazardous work: activity that is not a matter of common usage and involves seriou risk of harm to persons or property that cannot be eliminated by using special skill or care.
P Vicarious Liability
(1) agent, who is an employee, commits a tort while acting within the scope of employment.
(2) agent commits a tort when acting with apparent authority in dealing with a third party on, or purportedly on, behalf of the principal.
What does is mean to be within scope of employment?
employee is performing work assigned by the employer OR employee is engaging in a course of conduct subject to the employer’s control.
What are the tests to determine whether a tort occurred within the scope of employment?
Motive or purpose Test/Intent to Serve Test
Foreseeability Test/Characteristic Test
Motive or Purpose Test/Intent to Serve Test
(1)Was the conduct of the general kind the employee is employed to perform?
(2) Did the accident or tort occur substantially within the hours and ordinary special boundaries of the employment?
(3) Was the agent motivated at least in part by the purpose of serving the employer’s interest?
Clover v. Snowbird Ski Resort
Foreseeability Test/Characteristic Test
Ask whether the employee’s conduct should fairly have been foreseen from the nature of the employment or whether the risk of such conduct was typical or incidental to the employer’s enterprise.
* BROAD!
Ira S. Bushey & Sons, Inv. v. US
Case: Motive or Purpose Test/Intent to Serve Test
Clover v. Snowbird Ski Resort
* Chef at ski resort hit another skier when they went for a few extra runs before headed back to the restaurant at the bottom of the hill, after checking the restaurant in the middle of the skill hill.
* Court: chef had a predominant business purpose for his trip up to the Mid-Gad restaurant. This was a minor departure; not substantial enough to constitute total abandonment of his employment.
o Within the scope of employment –> employer vicariously liable.
Case: Foreseeability Test/Characteristic Test
Ira S. Bushey & Sons, Inv. v. US
* Seaman working for Coast Guard damaged a drydock and ship because he drunkenly turned some wheels on a drydock wall.
* US argued employee’s behavior was outside the scope of employment because the seaman had no intention of serving US government when he was drunk and turning valves.
* “Business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.
o This act was foreseeable because seaman was granted acess to the drydock to perform his duties.
o Government assumed the foreseeable risk.
Case: Franchisor Tort Liability
Patterson v. Domino’s Pizza (2014)
Facts: employee that was sexually assaulted sued both store and parent company (Dominos).
* Argued parent company should be liable as joint employer under agency principles.
Rule: Franchisor cannot escape liability in such a case merely because it failed or declined to establish a policy with regard to that particular conduct.
* Franchisor held liable if it has retained or assumed the right of general control over the relevant day-to-day operations at its locations.
Holding: Parent company not liable.
* Majority Test: Franchisor has to exhibit the traditionally understood characteristics of an employer or principle.
o It has retained or assumed a general right of control over factors/day-to-day operations such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of workplace behavior of franchisee’s employees.
* Parent company lacked contractual authority to manage behavior of franchisee’s employees while performing their jobs, including any acts that might involve sexual harassment.
o Franchisee had ‘sole control’ over hiring and firing of employees.
o Contract doesn’t provide that franchisee is not under control of franchisor.
Explicitly says not a principal agent relationship. (not dispositive, but relevant)
Restatement ways to terminate agency relationship:
(1) Death of A or P (when A or 3rd party has notice).
(2) Loss of capacity of P (when A or 3rd party has notice).
(3) expiration of a specified term (if there is one).
(4) A should reasonably conclude that P no longer would assent to A taking action on P’s behalf.
o Actual authority: what the agent reasonably believes.
(5) Manifestation of revocation by P to A, or renunciation by A to P.
o One of the parties changes their mind; other one has to notice it (must be TO EACHOTHER)
o P = revokes; A = renounces (Agency is based on mutual assent)
(6) Occurrence of circumstances specified by statute (random stuff)
Franchisor Arrangement
company/individual (franchisee) operating business pursuant to a license to do so (franchising agreement) from another company/individual (franchisor).
Consequences of Termination of Agency Relationship
A’s actual authority to bind P ends when agency ends.
A may compete with former P after agency relation terminated, but some duties continue.
* Duty to not disclose confidential or proprietary information learned during agency relationship.
Termination by itself does not end any apparent authority held by A.
