Tort Liability - In General Flashcards
Under what 2 theories may a principal be vicariously liable for there torts of her agent?
- respondeat superior; AND
2. apparent authority
What does “vicarious liability” mean?
joint and several liability for agent’s tort will be imputed to principal
Under “vicarious liability” - what is the effect if agent is not liable?
If agent is not liable –> principal is not liable (due to derivative nature of vicarious liability)
HOWEVER –> agent’s immunity from suit does not bar suit against principal
In addition to “vicarious liability” - how else may principal be liable for tort of agent?
- May be DIRECTLY liable for her own negligence in hiring, retaining or supervising agent
- May be DIRECTLY liable for agent’s tort if she gave agent ACTUAL AUTHORITY to commit the tort, or RATIFIED the tort, or in other circumstances involving independent contractors
What type of relationship must exist for respondeat superior to apply?
In general, an employer- employee relationship must exist (as opposed to an independent contractor relationship)
What is the general rule that creates an employer-employee relationship?
Does employer control the MANNER and METHOD in which the job is performed
Factors:
- characterization by parties
- whether business is distinct
- customs of locality
- degree of skill required
- whose tools or facilities are used
- period of employment (shorter is more likely to be IC)
- basis of compensation
How does the doctrine of respondeat superior apply to sub-servants ?
Duly authorized sub-servants –> does apply
Unauthorized sub-servants –> does not apply (and ER is not liable)
How can authorization to hire sub-servants arise?
May be express or implied
Implied can be from:
- past practices
- emergency situations
- reasonable necessity to achieve an authorized result
What is the doctrine of employer-employee by estoppel?
If principal creates appearance of employer-employee relationship on which 3rd party relies, principal will be estopped from denying the relationship and will be liable under doctrine of respondeat superior
How does the doctrine of respondeat superior apply to borrowed/loaned employees?
Original employer –> will normally be liable for tortious acts of loaned EE
HOWEVER –> key issue in determining liability for loaned EE’s torts is whether the borrowing principal or loaning principal had PRIMARY RIGHT TO CONTROL EE’s ACTIONS
When is principal liable for acts of independent contractor?
- inherently dangerous activities are involved;
- nondelegable duties have been delagated, OR
- principal KNOWINGLY selected an incompetent contractor
NOTE –> if principal was merely NEGLIGENT in selecting an incompetent contractor, principal is merely liable for her OWN NEGLIGENCE in selecting the contractor, and not for the contractor’s negligence
If an employer-employee relationship exists, when is employer liable for employee’s torts?
ER is liable only if torts were committed within the scope of employment
With regards to scope of employment, does employee’s conduct need to be actually authorized?
No.
If nature of he’s conduct is similar or incidental to that which was authorized, it’s probably within the scope of employment
With regards to scope of employment, what is effect of employer’s prohibition of conduct?
Irrelevant. It may still be within the scope of employment.
EXCEPTION –> serious criminal acts are normally outside of the scope of employment
With regards to scope of employment, what is the relevance of “frolic” and “detour”
Consider –> was EE’s conduct within the time and place of authorized employment
Detour or small deviation from employer’s direction —> is within scope of employment
Frolic or major deviation requiring substantial departure from employment —> beyond the scope
NOTE –> once it is shown that EE has left scope of employment, there must be proof of return before ER will be held liable for EE’s tort
