Vicarious Liability Flashcards
What is vicarious liability?
Separate theory of recovery - not negligence
+ Who else can we bring in to sue for a negligent act?
+ Like a form of strict liability because it’s holding a class of people responsible for actions regardless of negligence
+ One person’s obligation to pay for the injuries another person has inflicted → “Imputing Negligence”
Swenson –> can the employer be liable for emp.’s actions?
What are the elements to respondeat superior
1) Employee
2) Negligent Act (or intentional)
3) Scope of Employment
How did the Swenson case dig deeper into negligence within a respondeat superior case?
Swenson: Acting within Scope of Employment
Birkner Criteria:
1) Employee’s conduct must be the of the general kind the employee is hired to perform (vs. a wholly personal endeavor)
2) Conduct must be substantially within the hours and ordinary spatial boundaries of the employment.
3) Employee’s conduct must be motivated at least in part by serving the employer’s interest.
True or false: If there is an accident during a mix of business and personal motivation on part of employee, it still still be within scope of respondeat superior.
True
True or false: If purely for personal pleasure for employee, will be considered a “frolic” or “detour” and still within respondeat superior scope
False
True or false: Employer responsible can seek indemnification (recovery) from the employee and oftentimes they do
False. Employer responsible can seek indemnification (recovery) from the employee → but indemnification rarely happens (insurance covers the damages)
What are the policy reasons behind employers taking responsibility in a respondeat superior case?
Employers responsible for policy reasons:
+ Employer rules are encouraging employees behavior
+ Encourages employers to select competent employees and discipline employees
+ Deep pockets and can spread the loss
+ Gives employer incentive to police work force
Explain Foster v The Loft and how that applies to respondeat superior
Foster v The Loft
Owner failed to take reasonable steps to screen employees who would be dealing most closely with the public in an atmosphere that was “volatile” with a high potential of violence
Foreseeable risks that could have been avoided
Beyond respondeat superior, what are other ways employer could be responsible for an employee’s negligent acts?
Negligence → negligently hiring the employee
Apparent Agency → use if independent contractor rather than employee
What is apparent agency under the umbrella of vicarious liability? Is it limited to hospitals?
Apparent Agency → use if independent contractor rather than employee
If independent contractor, employer not generally liable, but can be vicariously liable if apparent authority / apparent agency
Not limited to hospitals
What are the three elements required for an employer to be vicariously liable for a independent contractor?
Three elements in order for employer liability (required):
1) a representation by the purported principal;
2) a reliance on that representation by the 3rd party; and
3) a change in position by the 3rd party in reliance on the representation
Why was the hospital vicariously liable for the contracted radiology department’s error in Roessler v Novak? Could the hospital be found negligent beyond apparent agency?
Roessler v Novak
+ Radiology dept separate, yet located on hospital grounds
+ Hospital and radiology had an exclusive contract for services
+ Patient didn’t have alternative radiology options when admitted to the hospital
Dissent: suggesting non delegable duty instead of the cat and mouse game of vicarious liability → just don’t let hospitals outsource important medical care
Smith note: Hospital could be found negligent beyond apparent agency if there was evidence that they didn’t do their due diligence in hiring or not taking action of previous negligent behavior
What are factors to consider in determining if an individual is an employee vs. independent contractor?
Independent Contractors: Brock Test → factors to consider
1) Extent to which employer can determine the details of the work
2) Custom of industry as to supervision of that person
3) Whether individual is engaged in distinct business or occupational activity separate from the employer
4) Skill required of the individual
5) Who supplies the place and instrumentality
6) Length of time of employment
7) Method of payment
8) Usually up to a jury to decide based on the facts
What is the general rule for independent contractors and vicarious liability?
General Rule for Independent Contractors and Vicarious Liability
R. 409: except as otherwise stated, the employer of an independent contractor is NOT liable for physical harm caused to another by an act or omission of the contractor or his servants
What is the exception to the general rule with regards to vicarious liability and independent contractors?
Exception R. 429: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.
