Torts: Multiple defendant issues

Question 1

Vicarious liability

Answer 1

There are some situations where one person is strictly liable for the torts of another person, regardless of fault (the person who actually committed the tort would also be liable). Vicarious liability exists in the following cases:

1) Respondeat Superior
2) Officers and Directors of a corporation (if the tort is committed in the scope of the corporation’s business)
3) Partners (if the tort is committed in the scope of the partnership’s business)
4) Joint Venturers (if the tort is committed in furtherance of the joint venture)

Question 2

Respondeat Superior

Answer 2

An employer is responsible for the torts of its employees that occur within the scope of the employment relationship.

an employer is not vicariously liable for the intentional torts of its employees, unless such torts were committed in the furtherance of the employer’s business (e.g., a bouncer, security guard, bill collector, repo man).

In some jurisdictions, an employer is vicariously liable for the intentional torts of its employees, unless such torts are “wholly unforeseeable and personal” or “so unusual or startling that it is unfair to hold the employer liable.”

An employer may be held directly (not vicariously) liable for the intentional tort of an employee if the employer negligently hired, retained, or supervised the employee.

In addition, an employer is not liable for an employee’s tort if the tort occurs while the employee is engaged in a frolic (e.g., a major deviation from employee’s duties), but the employer is liable if the tort occurred during a detour (e.g., a minor deviation from employee’s duties).

Question 3

Relationships in which there is generally NO vicarious liability

Answer 3

a. Car owner - driver
i. But a car owner may be held liable for negligent entrustment (e.g., loaning car to intoxicated driver).
ii. Statutory Exceptions:

Family Car Doctrine (owner vicariously liable for household members using the car) or

Permissive Use Doctrine (owner vicariously liable for anyone using the car with permission).

b. Parent - child
i. But a parent may be held liable for negligent supervision of a child or for giving a dangerous object (a gun) to a child.
ii. Statutory Exception: in some states, parents are liable for the intentional torts of their children up to certain dollar amounts.
c. Independent Contractor - Principal
i. Exceptions: a principal is vicariously liable if the independent contractor is engaged

in an ultrahazardous activity on behalf of the principal or

in a non-delegable duty of behalf of the principal:

• the duty of a landowner to business invitees to make the property safe,
• the duty of a landowner to avoid the creation of a nuisance,
• the duty of a landowner not to remove lateral support from neighbors, or
• the duty not to breach the peace during the repossession of a vehicle)
  d. Bailor – bailee
  i. But the bailor may be held liable for negligent entrustment

Question 4

Damages:

Answer 4

Joint and Several Liability.

If the negligent acts of two or more persons contributed to an indivisible injury in the plaintiff (or if two defendants acted in concert to cause a divisible or indivisible injury), all such persons are jointly and severally liable.

Joint and several liability is the default rule on the UBE.

Question 5

Contribution.

Answer 5

If one of the defendants pays all of the plaintiff’s damages (or more than his or her share of the plaintiff’s damages), that defendant may seek contribution from the other defendants.

Defendants who commit intentional torts are not entitled to contribution.

Comparative contribution is the majority and Restatement view.

Question 6

Indemnity:

Answer 6

In some cases, a defendant who is only secondarily liable may recover the entire amount that he or she paid to the plaintiff from a defendant who was primarily responsible for plaintiff’s injury.

The most common indemnity situations are

(i) an employer recovering from an employee (after the employer paid a respondeat superior judgment); and
(ii) a retailer or wholesaler recovering from a manufacturer (after the retailer or wholesaler paid a products liability judgment).

Question 7

In comparative contribution jurisdictions

Answer 7

contribution is apportioned based on fault

Problem: Paul sustained personal injuries in a three-car collision caused by the concurrent negligence of the three drivers, Paul, David, and Dawn. In Paul’s action for damages against David and Dawn, the jury apportioned the negligence 40% to Paul, 30% to David, and 30% to Dawn. Paul’s total damages were $100,000.

If Paul chooses to execute against David alone, he will be entitled to collect at most:

$60,000

If Paul collects the maximum amount from David, David will be entitled to collect $30,000 from Dawn.