Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

A legal theory, that arises out of certain types of relationships, that can be used to hold one person liable for the torts of another

Question 2

What is respondeat superior?

Answer 2

Vicarious liability where an employer can be held liable for torts committed by an employee if those torts are committed within the scope of employment

Question 3

What are the two requirements for respondeat superior?

Answer 3

1. there must be an employer-employee relationship
2. the employee committed the tort within the scope of their employment

Question 4

What is the main factor in determining whether there is an employer-employee relationship?

Answer 4

The extent of control which the employer may exercise over the details of the work

Question 5

What are the theories to determine whether a negligent act was done in the scope of the employment?

Answer 5

1. control theory
2. enterprise theory

Question 6

What is the control theory of scope of employment?

Answer 6

The employer has liability when the act of the employee was committed with the implied authority, acquiescence, or subsequent ratification of the employer

Question 7

What is the enterprise theory of scope of employment?

Answer 7

The employer has liability when the employer would have benefited by the context of the act of the employee, but for the unfortunate injury

Question 8

What is the dual purpose doctrine for intentional torts?

Answer 8

An intentional tort can fall within the scope of employment if it is done at least in part to further the employer’s interests

Question 9

What are the considerations for the dual purpose doctrine?

Answer 9

1. the employment gave rise to enable the tort
2. the act was foreseeable
3. motive test
4. activity test

Question 10

What is the “motive test” under the dual purpose doctrine?

Answer 10

Tests whether the employee was acting in their own personal interests, the interests of the employer, or both.

If an employee commits an intentional tort with the dual purpose of furthering the employer’s interest and their own personal interests, respondeat superior may lie.

If the employee acts purely in his own interest, liability under respondeat superior is inappropriate.

Question 11

What is the “activity test” under the dual purpose doctrine?

Answer 11

Whether the act was within the scope of duties of employment and in the execution of the service for which the employee was engaged (ex: sexual assault therapist)

Question 12

A principal is liable for the negligence of an independent contractor when:

Answer 12

1. the work is intrinsically dangerous
2. the work will probably cause injury to others unless due precaution is taken
3. by law or contract there are non-delegable duties
4. the act will create a nuisance
5. the act to be performed is illegal

Question 13

What are all of the steps for assessing vicarious liability?

Answer 13

1. define vicarious liability
2. define respondeat superior
3. is there an employer-employee relationship (criteria)
4. is the activity within the scope of employment
5. control theory
6. enterprise theory
7. dual purpose doctrine
8. was it foreseeable
9. motive test
10. activity test
11. did the employment give rise to the opportunity
12. causation
13. damages
14. defenses