Vicarious liability Flashcards
Who are the tortfeasors (TFs) who will be sued under VL
- Active TF - party whose affirmative conduct caused the harm
- Passive TF - party held vicariously liable based on relationship to active TF
what is the doctrine of respondeat superior
another way of saying that employer will be held liable for tortious actions of employee who’s tort occurs during scope of employment
Is employer liable if employee makes a minor (“detour”) deviation from scope of employment
inapplicable to independent contractors
YES
Is employer liable if employee makes a major (“frolic”) deviation from scope of employment
inapplicable to independent contractors
NO
Frolic vs. detour
FROLIC - MAJOR deviation
detour - minor deviation;
list (3)
Intentional torts by employees are not within scope of employment UNLESS
- Employee furthering business of employer
- Force authorized - ie a bouncer
- Friction part of employment - ie a bill collector
list (6)
An agent is likely to be an independent contractor if
- engaged in a distinct business of their own;
- controls the manner and method by which they perform their tasks;
- is hired to do a particular job;
- supplies own tools and materials;
- is paid a given amount for the job; and
- is hired to do a short-term, specific job.
A principal can be held liable for the tortious acts of an independent contractor if:
- The independent contractor is engaged in inherently dangerous activities; -OR-
- The principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier’s duty to keep his land safe for business invitees).
NOTE: a principal can be held liable for his own negligence in selecting an incompetent independent contractor.
Regarding vicarious liability, which of the following statements is true?
A - A defendant is not vicariously liable for the torts of an independent contractor unless the defendant was negligent in selecting the contractor
B - Respondeat superior is not a type of vicarious liability
C - Because of the special relationship between them, an employer is always vicariously liable for her employee’s torts
D - A defendant may be both vicariously liable and directly liable in the same action
D - A defendant may be both vicariously liable and directly liable in the same action
Under the doctrine of respondeat superior, an employer:
A May be liable for negligently supervising an employee
B Is liable for the tortious frolic of an employee
C Is liable for all tortious acts committed by his employees
D May be liable for an intentional tortious act committed by an employee
D May be liable for an intentional tortious act committed by an employee
A principal will be vicariously liable for the tortious acts of her independent contractor __________.
A if the principal negligently supervised the independent contractor
B if the principal negligently selected the independent contractor
C if the independent contractor is engaged in inherently dangerous activities
D under the doctrine of respondeat superior
C if the independent contractor is engaged in inherently dangerous activities
Which of the following circumstances has no bearing on whether an employer will be vicariously liable for an employee’s intentional tort?
A The employee was furthering the business of the employer.
B Friction was generated by the employment.
C Force was authorized in the employment.
D The employee was negligently supervised by the employer.
D The employee was negligently supervised by the employer.
A landlord employed his friend as the on-site manager of one of his apartment buildings despite being aware that he had previously been arrested for criminal battery, disorderly conduct, and driving while intoxicated. The manager did a good job dealing with the general maintenance of the apartment building, although the landlord was aware that he continued to drink heavily.
One night the manager, who was extremely intoxicated, attempted to swat an insect on the ceiling of his apartment and could not do so after several attempts. Enraged, he took a pistol from his drawer and shot at the insect. The bullet missed the insect and passed through the ceiling of his apartment into the apartment above, lodging in the leg of a tenant’s social guest.
Does the guest have a viable cause of action against the landlord?
A Yes, because the guest had been invited onto the property by the tenant.
B Yes, because the landlord was aware of the manager’s habitual drunkenness and propensity for violence.
C No, because the landlord cannot be held liable for the manager’s intentional torts.
D No, because shooting an insect was outside the scope of the manager’s employment.
B Yes, because the landlord was aware of the manager’s habitual drunkenness and propensity for violence.
A housecleaning agency was given a key to a customer’s house so that the agency could have its employees clean while the homeowner was away. After a maid sent by the agency had finished and left the homeowner’s house, she went back because she had forgotten her cigarettes. She neglected to lock the door when she left the second time because she was already late for the next job. When the homeowner returned after a few days away, she discovered that her house had been ransacked and several items of jewelry stolen. The front door was open, and there were no signs of forced entry.
If the homeowner brings an action against the agency that employed the maid, what is the likely result?
A She will not prevail, because she is limited to claims for breach of contract based on her agreement with the agency.
B She will not prevail, because the act of the burglar was a superseding cause of the homeowner’s loss.
C She will prevail, because the maid’s failure to lock the door created the risk that someone might enter and take the homeowner’s valuables.
D She will prevail, because when the maid returned after having completed her work, she was technically a trespasser, making the agency vicariously liable for any damage she caused to the premises.
C She will prevail, because the maid’s failure to lock the door created the risk that someone might enter and take the homeowner’s valuables.
A shopper was in a large department store that was remodeling its menswear department and had hired a contractor to do the work. A carpenter employed by the contractor was working on the remodeling job. When the carpenter left the store to take a break, she left a carpenter’s level projecting out into one of the aisles, unbeknownst to any store employees. Shortly before she returned 15 minutes later, the shopper came down that aisle and tripped over the level. He fell and struck his head on the sharp corner of a display case. The shopper required hospitalization and sued the store for his injuries.
Will the shopper prevail in his suit against the store?
A Yes, because the contractor’s employee left the level in the aisle.
B Yes, because the store’s employees had a reasonable time to discover the level before the shopper fell.
C No, because the store’s employees did not leave the level in the aisle.
D No, because the store’s employees were unaware that the level was in the aisle.
A Yes, because the contractor’s employee left the level in the aisle.
(B) is wrong. As part of the duty owed to customers, the store employees have a duty to make reasonable inspections of their premises to discover unsafe conditions (such as if a customer had spilled something slippery in an aisle). However, regardless of whether they had a reasonable time to discover the level, the store is liable because it is responsible for the carpenter’s conduct
