Vicarious Liability

Question 1

What is Respondeat Superior?

Answer 1

The idea than an employer can be held vicariously liable for the actions of their employees if they are acting within the scope of their employment

Question 2

What are the requirements of Respondeat Superior?

Answer 2

1. The actor was an employee as opposed to an independent contract - consider whether the employer had a right to control the physical performance of the individual
2. Whether the acts were within the “scope of employment”

Question 3

Under Respondeat Superior, there is usually not vicarious liability for independent contractors, what are some exceptions?

Answer 3

1. The contractor had apparent authority as an employee - agency based on conduct by the employer and reasonable reliance
2. The contractor’s activities were inherently dangerous or had a peculiar risk of harm
3. The contractor was performing illegal activities
4. The employer negligently hired, trained, or instructed the contractor (this is a different cause of action though)

Question 4

Why was the newspaper publisher not vicariously liable in Murrel v. Goertz?

Answer 4

Because the delivery man was in a sense an independent contract. Additionally, the delivery man worked for a separate distribution company and the publisher had no control over the activities of the deliveryman

Question 5

What should you consider when determine whether the acts were within the scope of employment?

Answer 5

1. Is the act the kind the employee was hired to perform
2. Did the act occur substantially within the authorized time and space of employment (frolic v. a detour)
3. Was the act done, at least in party, by a purpose to serve the employer?
4. If the act was intentional, did it stem from personal animus?

Question 6

Under the slight deviation rule, how can you differentiate between a frolic and a detour?

Answer 6

1. What was the employee’s intent?
2. What was the nature, time, and place of deviation?
3. How much time was spent on the deviation?
4. Was it an incidental act reasonably expected by the employer?
5. How much freedom was allowed to the employee in performing their job responsibilities?

Question 7

What is a non-delegable duty?

Answer 7

Certain duties cannot be delegated to other individuals, such as the duty to maintain one’s car

Question 8

What are some factors to look at when determining if a contractor’s duty was non-delegable to an employer?

Answer 8

1. Was the work by an independent contractor involving work at the employer’s building?
2. Was the work highly, inherently, or abnormally dangerous?
3. Did the work require special precautions?
4. Was the work governed by a safety statute?

Question 9

What’s the idea behind joint enterprise vicarious liability?

Answer 9

Individuals who run a business or enterprise may be held vicariously liable for the tort of the other if they are acting within the scope of their commercial activity

Question 10

In determining whether individuals are part of a joint enterprise, what factors should you consider?

Answer 10

1. Whether there’s a business agreement between the actors, or implied among members of the group
2. Whether there is a common purpose to be carried out by the group
3. Whether the group has a pecuniary interest in that purpose
4. Whether there is an equal right to a voice in the direction of the enterprise, equal right of control (distinction between joint venture and an employer/employee relationship)

Question 11

What is the coming and going rule?

Answer 11

1. No liability for an employer if the employee was leaving work or on the way to work
2. Exception where the employee is on the way home and endangers others because of a risk relating to or arising from the - Bussard v. Minimed