VICARIOUS LIABILITY

Question 1

VicariousLiability

Answer 1

1. respondent superior
2. independent contractor
3. JOINT ENTERPRISE

Question 2

Respondeat Superior Doctrine

Answer 2

RS imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.
RULE:
(1) Mut be employer-employee relationship (tortfeasor must be an employee of the employer), AND
(2) the tortious conduct was within scope of employment.

Question 3

GOING-COMING RULE + EXCEPTION TO RULE

Answer 3

“Going-and-coming” Rule
An employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work.

• Employment relationship is suspended from the time the employee leaves his job until he returns.
• The employee is not rendering services to his employer.

Exception to the “going-and-coming” Rule
When an employee endangers others with a risk arising from or related to work (example, employee got into car accidents on the way home after drinking alcohol at work).

Question 4

SLIGHT DEVIATION RULE

Answer 4

“Slight deviation Rule”:
If, when on the clock, an EE had substantially deviated (a.k.a. “frolic”) from scope of work when the tort to P was committed, the ER is not vicariously liable. By contrast, if only a slight deviation (a.k.a. “detour”), then ER is vicariously liable. Courts use a six-factor foreseeability test.
o Frolic: the pursuit of the employee’s personal business as a substantial deviation from or an abandonment of the employment.
o Detour: a slight deviation that is sufficiently related to the employment to fall within its scope.

Question 5

Factors to determine whether an employee has embarked on a slight or substantial deviation?

Answer 5

1. The employee’s intent or purpose in making deviation (in O’Shea= Employee regularly used personal car for employer’s business).
2. The nature, time and place of deviation, ((O’Shea = mere feet off direct route to job-related destination);
3. The time consumed by deviation (O’Shea = only a few minutes needed to get estimate);
4. The type of work for which the employee was hired,
5. The incidental acts reasonably expected by the employer for type of work, and
6. The degree of freedom/discretion allowed to employee in performing his job responsibilities.

Question 6

Factors to determine an independent contractor versus employee

Answer 6

1. Extent of control which ER is authorized to exercise over the details of actor’s work.
2. Who supplies tools, other equipment, and place of work.
3. Whether actor is paid on time basis (e.g., hourly, salary) or per task completed.
4. The length of time for which actor is hired to perform.
5. Whether the actor is engaged in specialized occupation or business (e.g., A/C repair rather than handyman).
6. Whether type of work is usually performed under ER’s supervision or by specialist without supervision, and extent of skill required.
7. Whether actor’s work is part of ER’s regular business.
8. Parties’ subjective beliefs as to nature of business relationship

Question 7

Exception to rule regarding independent contractors.

Answer 7

even if a IC negligence cause the injury, a ER is liable when he has contracted with IC for work involving non-delegable duties, such as inherently dangerous activities and peculiar risk of harm.

Question 8

elements to determine joint enterprises

Answer 8

1. implied or express agreement among members
2. common purpose to be carried,
3. communality of pecuniary interest in that purpose,
4. equal right of control.