Vicarious Liability

Question 1

Vicarious Liability

Answer 1

• “Masters … are answerable for the damage occasioned by their servants… in their exercise of the functions in which they are employed.”
• Elements:
  (1) Employment relationship
  (2) Course and scope of employment
  (3) Underlying fault

Question 2

Employment Relationship

Answer 2

• To determine whether the actor was an employee, the courts use the control test, which asks “could the employer have exercised control over how work was done?”
• Vicarious liability does not apply to independent contractors except for ultra-hazardous activities.
• A borrowed-employee satisfies this element dependent on the following factors:
  (1) right of control; (2) actual exercise of control by borrower; (3) relinquishment of control by general employer; and (4) whether work was being done for the borrower.
• Dual Employment Doctrine : the lending (payroll) employer (and borrower) remain liable for the torts of its loaned employee when the lending employer has an economic interest in the lending.

Question 3

Course and Scope of Employment

Answer 3

• Employer is vicariously responsible for actions of employee where the act is within the course and scope of the employment relationship.
• Employers will not be liable for actions of employees when employees are engaged in “frolic and detour.”

Question 4

Enterprise/Risk Theory

Answer 4

• Essentially is the risk fairly attributable to the employer?
• “The risks which are generated by an employee’s activities while serving his employer’s interests are properly allocated to the employer as a cost of enterprise.”
• Factors to consider to determine whether the employee was in the course and scope of his employment include:
  
  • Payment of wages; Control over work and work methods; Time, place and purpose of act; Relationship between employee’s act and employer’s business; Benefits received by the employer; Employee’s duty to perform the particular act; and Reasonable expectation of the employer that the employee would perform the act.

Question 5

Employee vs. Independent Contractor

Answer 5

• An employer is not vicariously liable for the torts of an independent contractor. The test
  for determining whether an agent is an independent contractor is whether the principal has the right to exercise control. The factors to consider are:
  (1) Whether there is a contract between the parties;
  (2) Whether the contractor chooses the means for accomplishing the task; and
  (3) Whether the object of the contract is a particular piece of work for a set price.

Question 6

Vicarious Liability - Intentional Torts

Answer 6

An employer is responsible for the intentional torts of his/her/its employee when the conduct is so closely connected in time, place, and cause that it constitutes a risk of harm attributable to the employer’s business.

Question 7

Negligent Hiring

Answer 7

• The standard is whether the employer has exercised reasonable care in hiring employees who, in the performance of their duties, will not subject third parties to a serious risk of harm.
• Vicarious liability and negligent hiring are distinct theories of liability and a plaintiff may pursue both theories, even if the employer stipulates that the employee was within the course of employment.