Vicarious Liability Flashcards
first step
What is the difference between primary liability and vicarious liability?
Primariy liability is when you are held responsible for the negligent acts you caused.
Vicarious liability is when the negligent acts of another person are attributed to you as though you commited them yourself.
When is an employer vicariously liable for the acts of an employee?
When they satisfy the Three-Part Birkner test:
1. Was the conduct the type the employee was hired to perform?
(foreseeability to employer)
2. Was the conduct performed within the hours and spatial boundaries of employment?
(foreseeability to employer)
3. Was the conduct motivated AT LEAST IN PART for the purpose of serving the employer’s interest?
(subjective motivation of employee)
When is an employer vicariously liable for the acts of an independent contractor?
If it is a NON-DELEAGABLE duty then the employer is VL:
Duty to the public at large
Risky activity
Instrumentalities used in highly dangerous activity
Legislatively or administratively prescribed duty.
Three Factor Test for E-IC liability
1. Person is independent of the employer in the performance of the work.
2. Person does work outside the employer’s line of work.
3. The person does work that is part of an independent trade, occupation or business
Why are the rules different for employees and independent contractors?
An employer has a greater level of control over an employee than an independent contractor. Since employers generally have less control over independent contractors they use a different set of rules to see if the control over the IC rises to that of a traditional employee.
What is ostensible agency? How is it applied and what are its doctrinal rules?
Ostensible agency is when the victim incurs a harm from an IC and the only the employer owed the victim was a delegable duty.
They rely on representation and reliance.
Novak Test
1. Representation of proportion as employee by principal. (employer purports IC as an employee)
2. Justifiable reliance
(Victim relies on representation as true)
3. Detrimental reliance
(vicitm’s position is changed (injury) by the IC due to reliance)
Rest (3d) of Torts §65
1. Reasonable belief
Services are accepted in the reasonable belief actor or actor’s employees are rendering service
2. Detrimental Reliance
The IC performs the services that the victim has accepted to be a reasonable representation of the employer which results in the victims direct harm
How does the application differ between the Novak test and Rest 3d §65?
The Novak test requires an affirmative representation by the purported principal that the puroported agent was acting on their behalf as an employee.
§65 does not require an affirmative representation.
How does ostensible agency compare to vicarious liability based on employer-employee relationships and non-delegable duties?
Ostensible agency focuses on the reasonability of the vicitm’s reliance of representation. Where as vicarious liability focuses on the foreseeability of the negligent conduct in relation to the employer.
What is the theory of a survival action and what can you recover from it?
It allows an estate to bring forth an action to approximate the action that a decedent could bring had he/she lived. Usually a will is present/available
Compensation
Pecuniary: lost future wages, medical expenses before death
Non-pecuniary: pain and suffering before death (fear felt in the moment)
What is the theory of wrongful death action and what can you recover from it?
It allows an action to be brought by those who depended on the decedent based on intestancy laws.
Usually no will is present/available
Compensation
Pecuniary: Loss of support (based on projections)
Non-pecuniary: Loss of companionship and affection (projected quality of relationship)
What is the difference between compensatory and punitive damages?
Compensatory: compensate the vicitm for pain and suffering with money
Punitive: punish the inflictor can be jail time
What is the difference between pecuniary and non-pecuniary compensation?
Pecuniary is tangible
bodily harm: medical expenses, lost wages
property: cost of repair and replacement, loss of use during repair and replacement
Non-pecuniary is intagible
bodily: pain and suffering
property: no emotional harms exist
What is the difference between an action for survival and one for wrongful death?
Survival has a will, Wrongful does not
Survival is brought by the estate to establish what the cost of their potential life would be.
Wrongful is brought by those dependent on the decedent what the cost of their life effects the dependents life.
What are the jurisdicitonal caveats for survival and wrongful death?
Some allow recoery for only one or the other
Some recognize only pecuniary damages
Some allow both cause of actions but no double recovery
