Vicarious Liability

Question 1

Vicarious liability - generally

Answer 1

Vicarious liability is liability that is derivatively imposed. This means that one person, the active tortfeasor, commits a tortious act against a third-party and another person, the passive tortfeasor, will be liable to the third-party for this act.

Question 2

Vicarious liability - employer-employee - generally

Answer 2

An employer will be vicariously liable for tortious acts committed by their employee if the tortious act occurred with the scope of the employment relationship. Respondeat superior. 

Question 3

Vicarious liability - employer-employee - frolic vs detour

Answer 3

An employee making a minor deviation from their employers business, for their own purposes is still acting within the scope of of the employment. If the deviation in time or geographic area is substantial, the employer is not liable.

Question 4

Vicarious liability - employer-employee - intentional torts

Answer 4

It is usually held that intentional tortious conduct by employees is not within a scope of employment. Exceptions:

The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy

Force is authorized in the employment, for example, bouncer

Friction is generated by the employment, for example, a bill collector 

Question 5

Vicarious liability - employer-employee - liability for own negligence

Answer 5

Employers may be liable for their own negligence by negligently selecting or supervising their employees. But this is not vicarious liability.

Question 6

Vicarious liability - independent contractor situations - generally

Answer 6

In general, the hiring party will not be vicariously liable for the tortious acts of an independent contractor when the hiring party does not control the manner and method in which the independent contractor performs the job. Hiring party is the principal and the independent contractor is the agent.

There are public policy exceptions, however, for example, where duty is simply nondelegable such as the duty of a business to keep its premises safe for customers.

Question 7

Vicarious liability - independent contractor situations - liability for own negligence

Answer 7

The employer may be liable for their own negligence and selecting are supervising the independent contractor. For example, a hospital may be liable for contracting with an unqualified and incompetent healthcare provider who negligently treats the hospitals patients

Question 8

Vicarious liability - partners and joint venturers

Answer 8

Each member of a partnership or joint venture is vicariously liable for the torturous conduct of another member committed in the scope and course of the affairs of the partnership or joint venture

Question 9

Vicarious liability - automobile owner for driver

Answer 9

The general rule is at an automobile. Owner is not vicariously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts of developed exceptions to this rule to hold an automobile, owner, reliable under specific circumstances. 

Question 10

Vicarious liability - automobile owner for driver - family car doctrine

Answer 10

In many states, the owner is liable for tortious conduct of immediate family or household numbers who are driving with the owners express or implied permission.

Question 11

Vicarious liability - automobile owner for driver - permissive use

Answer 11

A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owners consent. However, under a federal statue, rental car companies are not vicariously liable for the negligent accidents of their customers, even if they do business in a permissive use
state.

Question 12

Vicarious liability - automobile owner for driver - liability for own negligence - negligent entrustment

Answer 12

An owner may be liable for their own negligence and trust the card to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could’ve prevented the negligent driving, and hence they were negligent and not not doing so.

Question 13

Vicarious liability - automobile owner for driver - driver acting as agent for owner

Answer 13

The car driver will be liable if the driver is acting as the owners agent, for instance, using the car to perform an errand for the owner.

Question 14

Vicarious liability - bailor for bailee - generally

Answer 14

Under the general rule, the bailor is not vicariously liable for the tortious conduct of their bailee.

Question 15

Vicarious liability - bailor for bailee - negligent entrustment

Answer 15

The bailor may be liable for their own negligence in entrusting the bailed object (NOT vicarious liability)

Question 16

Vicarious liability - parent for child - generally

Answer 16

A parent is not vicariously liable for the tortious conduct of their child at Common law. Note, however, that most states by statute make parents liable for the willful and intentional towards of their minor children up to a certain dollar amount, like $10,000.

Question 17

Vicarious liability - parent for child - child acting as agent for parents

Answer 17

Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.

Question 18

Vicarious liability - parent for child - parent liable for own negligence

Answer 18

The parent may be held liable for their own negligence and allowing the child to do something, for example, use a dangerous object without proper instruction. Furthermore, if the parent apprised of the child’s conduct on past occasions, showing a tendency to injure another person or property, they may be liable for not using do you care and exercise and control to mitigate such conduct. For example, allowing the child to play with the other children that they have a history of attacking.

Question 19

Vicarious liability - tavernkeepers - common law

Answer 19

No liability was imposed on vendors of intoxicating beverages for injuries, resulting from the patrons intoxication, whether the injuries were sustained by the patron or by third-party as a result of the patron conduct.

Question 20

Vicarious liability - tavernkeepers - modern law

Answer 20

Many states, in order to avoid this common law rule, have an active dramshop acts. Such as usually create a cause of action in favor of any third-party injured by the intoxicated patron. Several courts have imposed liability on tavern keepers, even in the absence of a dramshop act. This liability is based on ordinary, negligence principles, the foreseeable risk of serving a minor or obviously intoxicated adult, rather than vicarious liability. 

Question 21

Multiple defendant issues - Joint and several liability - generally

Answer 21

Under the traditional common law rule, when two or more negligent acts combine to proximately caused an individual injury, each negligent actor will be jointly and severally liable. That is, liable to the plaintiff for the damage incurred. If the injury is divisible, each defendant is liable only for the identifiable portion..

Question 22

Multiple defendant issues - Joint and several liability - defendants acting in concert

Answer 22

When two more defendants act in concert and injure, the plaintiff, each is jointly and severely liable for the entire injury. This is so even if the injury is divisible.

Question 23

Multiple defendant issues - Joint and several liability - statutory limitations

Answer 23

Many states have a abolished joint and several liability in cases based on fault either 1) for those defendants judge to be less at fault than the plaintiff, or 2) for all defendants regarding non-economic damages. In these cases, liability will be proportional to the defendants fault.

Question 24

Multiple defendant issues - satisfaction and release - satisfaction

Answer 24

Recovery of full payment is a satisfaction. Only one satisfaction is allowed. Until there is a satisfaction, however, one may proceed against all jointly liable parties.

Question 25

Multiple defendant issues - satisfaction and release - release

Answer 25

In most states, a release of one tortfeasor does not discharge another tortfeasor unless it is expressly provided for in the release agreement.

Question 26

Multiple defendant issues - contribution and indemnity - generally

Answer 26

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.

Keep in mind that neither of these doctrines affect how much the plaintiff receives. Rather, they deal with claims by a defendant against another joint tortfeasor to determine how much of the total award each of them ultimately must pay.

Question 27

Multiple defendant issues - contribution - generally

Answer 27

The rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against another jointly liable party for the excess. In other words, it apportions responsibility among those at fault.

Question 28

Multiple defendant issues - contribution - methods of apportionment - comparative contribution

Answer 28

Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants.

Question 29

Multiple defendant issues - contribution - methods of apportionment - equal shares

Answer 29

In a minority of states, apportionment is in equal shares, regardless of degrees of fault

Question 30

Multiple defendant issues - contribution - contribution tortfeasor must have liability

Answer 30

The contribution defendant must be originally liable to the plaintiff. If the contribution defendant has a defense that would bar liability, such as intra family tort immunity, they are not liable for contribution.

Question 31

Multiple defendant issues - contribution - not applicable to intentional torts

Answer 31

Contribution is not allowed among intentional tortfeasors

Question 32

Multiple defendant issues - indemnification - generally

Answer 32

Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances:

In vicarious liability situations

Under strict product liability for the non-manufacturer

Question 33

Multiple defendant issues - comparing contribution and indemnity

Answer 33

To keep contribution and indemnity separate in your mind, recall that for a contribution to apply generally both defendants must have a measurable degree of culpability for the tort. On the other hand, indemnity usually applies with the pain defendant is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with a non-paying defendant.

Question 34

Multiple defendant issues - comparative contribution

Answer 34

Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

Question 35

Loss of consortium and tortious interferences with family relationships - between spouses

Answer 35

Either spouse may bring an action for indirect interference with consortium and services caused by the defendants, intentional or negligent, tortious conduct against the other spouse

Question 36

Loss of consortium and tortious interferences with family relationships - parent-child

Answer 36

A parent may maintain an action for loss of a child services and consortium as a result of the defendants tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent. 

Question 37

Loss of consortium and tortious interferences with family relationships - nature of action

Answer 37

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship. 

Question 38

Survival and wrongful death - survival of tort actions

Answer 38

Survival acts allow one cause of action to survive the death of one or more of the parties. The acts applied to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interest, for example, defamation, invasion of right of privacy or malicious prosecution, expire upon the victims death. 

Question 39

Survival and wrongful death - wrongful death

Answer 39

Wrongful death acts, grant recovery for pecuniary injury, resulting to the spouse and next of kin. Decedent creditors have no claims against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. Hence, the decedents, contributory negligence reduces the wrongful, death, recovery, and comparative negligence states.similarly, a potential beneficiaries contributory negligence reduces their share of the recovery in comparative negligence states.

Question 40

Tort immunities - intra-family tort immunities

Answer 40

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished spousal immunity. A slight majority have also abolished parent child immunity, but generally do not allow children to sue merely for negligent supervision. Those that retain parent child immunity do not apply it in cases alleging intentional tortious conduct, or automobile accident cases to the extent of insurance coverage. 

Question 41

Tort immunities - governmental tort immunity - federal government

Answer 41

Under the federal tort claims act, the United States has waived immunity for tortious acts. However, immunity will still attach for assault, battery, false and prisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights.

Immunity is also not waived for acts that are characterized as discretionary, but acts termed ministerial are not immune from liability. 

Question 42

Tort immunities - governmental tort immunity - generally

Answer 42

In varying degrees, federal state and municipal tort immunity has been eliminated. Where it survives, immunity attaches to governmental, not proprietary functions.

Question 43

Tort immunities - governmental tort immunity - state government

Answer 43

Most states have substantially waived their immunity to the same extent as the federal government. Hence, immunity is retained for discretionary acts and for legislative and judicial decision-making. 

Question 44

Tort immunities - governmental tort immunity - local governments

Answer 44

About half of the states have abolished municipal immunity to the same extent as that for state government. Where municipal immunity has been abolished, the public duty role provides that a duty ode to the public at large is not owed to any particular citizen absent a special relationship Between the governmental body and the citizen. Thus a city will not be liable to one whose house burns if the fire department negligently fails to respond to an alarm because the provision of the fire protection services is a public duty. Where municipal immunity still exist, contrast, governmental functions and proprietary functions. Courts limit application of sovereign immunity by not granting it for proprietary functions that might as well have been provided by a private corporation.

Question 45

Charitable immunity

Answer 45

The majority of jurisdictions have a eliminated charitable immunity.

Question 46

Tort immunities - governmental tort immunity - immunity of public officials

Answer 46

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.