Torts AMP Set - Vicarious Liability And Joint Liability Flashcards
An employee who is on a _________ is making a __________ deviation from his employer’s business and does not fall within the doctrine of respondeat superior.
A detour; major
B detour; minor
C frolic; minor
D frolic; major
D
An employee who is on a frolic is making a major deviation from his employer’s business and does not fall within the doctrine of respondeat superior; hence, the employer will not be vicariously liable for the employee’s torts. In contrast, an employee who is on a detour has made only a minor deviation from the employer’s business; the employee will still be considered to be acting within the scope of employment and the employer will be vicariously liable for the employee’s torts. QUESTION ID: T0103 Additional Learning
Which of the following is a correct statement regarding joint and several liability?
A Joint and several liability may apply even when the plaintiff’s injury is divisible
B The tortfeasors must act in concert for joint and several liability to apply
C The injury must be indivisible for joint and several liability to apply
D Each tortfeasor is liable only for his severable portion of the damage incurred
A
Joint and several liability may apply even when the plaintiff’s injury is divisible. In general, when two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. While ordinarily joint and several liability does not apply when the plaintiff’s injury is divisible, when two or more tortfeasors act in concert and injure a plaintiff, then each will be jointly and severally liable for the entire injury even though the injury is divisible and one can identify what each tortfeasor has done alone. Joint and several liability does not mean that each tortfeasor is liable for his severable portion of the damage incurred; rather, it means that each is liable to the plaintiff for the entire damage incurred. Joint and several liability also does not require that the tortfeasors act in concert; joint and several liability applies even though each tortfeasor acted entirely independently. QUESTION ID: T0106A Additional Learning
A principal’s vicarious liability for the torts of her independent contractor does not depend on whether:
A The contractor is engaged in an inherently dangerous activity
B The principal negligently selected the contractor
C The contractor’s activity involves a nondelegable duty
B
A principal’s vicarious liability for the torts of her independent contractor does not depend on whether the principal negligently selected the contractor. This is not vicariously liability. Rather, the employer may be liable for her own negligence in selecting or supervising the independent contractor. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) if the independent contractor is engaged in an inherently dangerous activity (e.g., excavating next to a public sidewalk, blasting, etc.), or (ii) if it involves a nondelegable duty because of public policy considerations (e.g., the duty of a business to keep its premises safe for customers). QUESTION ID: T0104B Additional Learning
Which of the following is correct regarding the vicarious liability of an automobile owner?
A An owner is always vicariously liable for the tortious conduct of another driving his automobile
B Many states hold the owner vicariously liable for the tortious conduct only of a family member driving his automobile
C States applying the permissive use doctrine hold an owner liable for damages caused by anyone driving his car, regardless of consent
B
Many states by statute or judicial precedent have adopted the “family car” doctrine, by which the owner is vicariously liable for the tortious conduct only of an immediate family member driving his automobile with the owner’s express or implied permission. This is an exception to the general rule that an automobile owner is NOT vicariously liable for the tortious conduct of another driving his automobile. A number of states have gone further by enacting “permissive use” statutes, which hold an owner liable for damages caused by anyone who is driving the owner’s car, but only WITH his express or implied consent. QUESTION ID: T0105A Additional Learning
Which of the following is not true regarding vicarious liability?
A A defendant may be both vicariously liable and directly liable in the same action.
B Respondeat superior is a type of vicarious liability.
C The conduct of the tortfeasor is imputed to the defendant because of a special relationship between them.
D Another term for vicarious liability is “imputed contributory negligence”.
D
“Imputed contributory negligence” is not another term for vicarious liability. While both doctrines arise from the special relationship between a negligent actor and another, imputed contributory negligence operates as a defense because the contributory negligence of another is imputed to the plaintiff, while vicarious liability operates as a mechanism for liability because the conduct of the tortfeasor is imputed to the defendant. Respondeat superior is a type of vicarious liability based on an employment relationship. A defendant may be both vicariously liable and directly liable in the same action. In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor. QUESTION ID: T0102 Additional Learning
What is the effect on a tavernkeeper of a “Dramshop Act”?
A It restricts the common law rule making the tavernkeeper vicariously liable for the torts of his intoxicated patron.
B It creates a cause of action against the tavernkeeper in favor of a patron of the tavernkeeper injured as a result of the patron’s intoxication.
C It creates a cause of action against the tavernkeeper in favor of third persons injured as a result of the intoxication of the tavernkeeper’s patron.
D It makes the tavernkeeper primarily liable and the intoxicated patron of the tavernkeeper secondarily liable for any torts of the intoxicated patron.
C
A “Dramshop Act” creates a cause of action against the tavernkeeper in favor of third persons injured as a result of the intoxication of the tavernkeeper’s patron. At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Dramshop Acts change this result in many states by creating the cause of action described above. Hence, it does not restrict the common law rule of vicarious liability; it changes the rule of no liability. The rule does not make the tavernkeeper primarily liable and the patron secondarily liable; the patron’s liability is unchanged. Also, it does not create a cause of action in favor of a patron of the tavernkeeper; most Dramshop Acts do not apply to injuries suffered by the intoxicated patron. QUESTION ID: T0120 Additional Learning
Under a Dramshop Act, a tavernkeeper _________ liable to third parties who are injured by an intoxicated vendee.
A Is not vicariously
B Is directly
C May be vicariously
C
Many states have enacted Dramshop Acts, under which a tavernkeeper may be vicariously liable to third parties who are injured by an intoxicated vendee. At common law, a tavernkeeper was not vicariously liable for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Several courts have imposed direct liability on tavernkeepers based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability, but this is not the statutory liability of a Dramshop Act. QUESTION ID: T0120A Additional Learning
If two tortfeasors act in concert and cause divisible injuries to a plaintiff, how is liability apportioned?
A Each tortfeasor is liable for only his divisible portion of the injuries
B Each tortfeasor is jointly and severally liable for the entire injury
C Each tortfeasor is liable only for the portion of the injuries that can be identified as being caused by him
B
Each tortfeasor who acts in concert is jointly and severally liable for the entire injury. Typically, when two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to the plaintiff for the entire damage incurred. However, if the actions are independent, plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then generally each will only be liable for the identifiable portion. On the other hand, when two or more tortfeasors act in concert (i.e., by agreement), and injure the plaintiff, then each will be jointly and severally liable for the entire injury. This is so, even though the injury is divisible and one could identify what each tortfeasor has done alone. Thus, in this case each tortfeasor is NOT liable only for his divisible portion of the injuries or for the portion of the injuries that can be identified as being caused by him. QUESTION ID: T0106B Additional Learning
__________ is a surrender of the plaintiff’s cause of action against one of the joint tortfeasors.
response - incorrect
A Satisfaction
B Indemnity
C Release
D Contribution
C
Release is a surrender of a plaintiff’s cause of action against the party to whom the release is given. A release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement. The claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater. Satisfaction occurs when the plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment. She may not recover further against any other joint tortfeasor. Indemnity involves shifting the entire loss between or among joint tortfeasors. Contribution is a device whereby responsibility is apportioned among those who are at fault. Where joint and several tort liability exists, it permits the plaintiff to recover the entire judgment amount from any tortfeasor. The rule of contribution allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess. QUESTION ID: T0107B Additional Learning
If an employee commits a tortious act while on a “frolic,” the employer:
A Is vicariously liable
B Is vicariously liable, unless the employer did everything possible to prevent it
C Is not vicariously liable
C
If an employee commits a tortious act while on a “frolic,” the employer is not vicariously liable. An employee on a delivery or business trip for his employer may commit a tort while deviating from the employer’s business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment, and in that instance the employer will be vicariously liable. However, if the deviation was for an extended amount of time and outside of the geographic area, it will be considered a “frolic,” for which the employer would not be liable. Vicarious liability does not depend on whether the employer did everything possible to prevent the tortious act. The employer will be liable as long as the act was within the scope of employment. QUESTION ID: T0103B Additional Learning
Which of the following statements about indemnity is correct?
A Indemnity apportions damages between the tortfeasors
B A right to indemnification is generally read into contracts
C A party held vicariously liable may seek indemnification from the party who actually caused the damage
C
A party held vicariously liable may seek indemnification from the party who actually caused the damage. When a defendant is held liable for damages caused by another person simply because of the defendant’s relationship to that person (e.g., employer for employee’s torts, landowner with nondelegable duty breached by an independent contractor, etc.), the defendant may seek indemnification from the person whose conduct actually caused the damage. Indemnity does NOT apportion damages between tortfeasors. Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning the damages as in contribution. A right to indemnification is generally NOT read into contracts. Contracts in which one person promises to indemnify another against consequences of his own negligence are generally upheld. However, the right to indemnification will not be read into an agreement unless there is evidence that the right was clearly intended. QUESTION ID: T0109A Additional Learning
What is the apportionment method used by the majority of states for contribution?
A The tortfeasors pay in proportion to their relative fault
B The tortfeasor most responsible pays his share first, and then the rest pay in equal shares
C All tortfeasors pay equal shares regardless of respective degrees of fault
A
Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various tortfeasors. Under joint and several tort liability, a plaintiff can recover the entire judgment amount from any tortfeasor. The rule of contribution allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess. Thus, contribution is a device whereby responsibility is apportioned among those who are at fault. Comparative contribution is used by most states. A minority of states require all tortfeasors to pay equal shares, regardless of their relative degrees of fault. This is known as the equal shares method of apportionment. Contribution systems are not structured so that the most responsible tortfeasor pays his share first. QUESTION ID: T0108A Additional Learning
Which of the following statements about an employer’s vicarious liability is correct?
A An employer will not be vicariously liable if the employee’s tortious acts violated the employer’s rules
B An employer will be vicariously liable for negligently selecting an employee
C An employer will be vicariously liable only if the employee’s tortious acts were committed within the scope of the employment relationship
C
Under the doctrine of respondeat superior, an employer will be vicariously liable if the employee’s tortious acts were committed within the scope of the employment relationship. Vicarious liability is liability that is derivatively imposed. Thus, if one person commits a tortious act against a third party, another person can be liable to the third party for this act. This may be so even though the other person has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done everything possible to prevent it. Hence, an employer MAY be vicariously liable even though the employee’s tortious acts violated the employer’s rules. Employers may be liable for their own negligence by negligently selecting or supervising their employees; however, negligently selecting an employee will NOT make an employer vicariously liable. QUESTION ID: T0119C Additional Learning
Which of the following is true under the doctrine of joint and several liability?
A The doctrine does not apply if the jurisdiction has adopted comparative negligence.
B Each tortfeasor is liable to the plaintiff for the entire damage that the plaintiff suffered.
C Each tortfeasor is liable for that portion of the plaintiff’s injuries that he caused.
D The doctrine applies when each portion of the plaintiff’s injuries can be ascribed to each of the tortfeasors acting independently.
What is the effect on the plaintiff’s pursuit of his damages if he recovers full payment from one joint tortfeasor either by settlement or payment of a judgment?
A The plaintiff may still proceed against other jointly liable parties for contribution
B There is a satisfaction, and the plaintiff may not recover further against any other joint tortfeasor
C There is a release, and the claim against the other tortfeasor is reduced
B
If a plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a “satisfaction,” and the plaintiff may not recover further against any other joint tortfeasor. Until there is a satisfaction, however, she may proceed against other jointly liable parties. This situation is not a release, whereby the claim against the other tortfeasor is reduced. A release is a surrender of a plaintiff’s cause of action against the party to whom the release is given. A release of one tortfeasor does not discharge other tortfeasors, unless expressly provided in the release agreement. The claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater. A plaintiff does not proceed against other jointly liable parties for contribution; contribution is a device that allows a tortfeasor who has paid more than his share to recover against other jointly liable tortfeasors. QUESTION ID: T0107A Additional Learning
