Vicarious Liability Flashcards
Vicarious Liability
what is it?
- Liability w/o fault
- You are liable based upon relationship with employer
- When we are looking at respondeat superior where we are looking at an employer’s vicarious liability
VL Respondeat Superior RULE
Employers are vicarious liable for acts within the course and scope of employment by the employee
To find whether RS applies –> 2 key issues/questions must be assessed.
- Was the person acting within the course and scope of employment?
- AND was the person an employee or an independent contractor?
Whether VL applies–> on first question–>
o Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform
* Seeing if employee is at work, occurs during biz hours,
(b) it occurs substantially within the authorized time and space limits
(c) AND it is actuated, at least in part, by a purpose to serve the master.
* That is, its benefitting the master economically
1st Question on VL dealing with the Coming & Going RULE
You are not acting within scope of employment when you are driving to and from work
o Exception: the risk arose and is related to the job–>then coming and going rule will not apply
1st Question on VL dealing with Slight Deviation RULE
to find VL–>courts must determine whether the person was on a frolic or detour
Slight Deviation RULE on Diversion/Detour
what is it?
If the conduct is not a substantial deviation from duties of employment then VL will attach and find employer VL
* Looks at an abandonment of responsibility, service to employer, not too removed in time, distance, or purpose and would be deemed incidental to employment
* Acts necessary to the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment
Slight Deviation RULE on Frolic
what is it?
o Frolic—substantial deviation
That is if its for the employee’s own purpose then VL will not attach/the employer is not responsible
Slight Deviation RULE–>how to determine whether its a detour or frolic
(1) the employee’s intent;
(2) the nature, time, and place of the deviation;
(3) the time consumed in the deviation;
(4) the work for which the employee was hired;
(5) the incidental acts reasonably expected by the employer;
(6) AND the freedom allowed the employee in performing his job responsibilities.
VL on intentional torts
whats the majority approach?
that if employee acts reckless within scope of employment–>then employer is on the hook for punitive damages
Conditions of principal authorized or ratified employee’s act or reckless…
VL on distinction of negligence in hiring or retention of employee
o If you can pt negligence of part of employer–>can’t do it
if you are responsible based upon VL–>can you seek contribution or indemnity??
indemnity
2nd Question on independent conractor–> what do you apply?
- Control Test: if you (as employer) have control over independent contractor then they are an employee
- Control—means diff things thus several factors are used to find whether the independent contractor is likely (not always) an employee
2nd Question –> Control Test factors
o Does the principal supervise and control the details of the work?
o If this a distinct occupation or biz, like plumber or electrician?
o Are they a specialist?
o Is special skill required?
o Who supplies their tools and their workspace?
o Is this a one-time job, single task or a long time work?
If this is a single test, its typically done by ind. Contactor who installs kitchen cabinets in a new home
o Are they paid by the job or regular set intervals?
o Is the job part of the hirers’ regular biz?
o What do they parties call themselves?
This is not determinative acc to prof
o If the employer takes out your taxes or pays for your social security–>then likely an employee
o Keep in mind that what the parties call themselves is not determinative
o And having employer polices in place does not equal control over independent contractor or employee
Exceptions that may apply even if you still find independent contractor
- Apparent Authority Exception
- OR Nondelegable Duties Exception
- Apparent Authority Exception
o If there is apparent authority given by the principal to the Independent Contractor–>then VL attaches, and employer is liable
- Apparent Authority Exception
2 Question Elements
1. Whether the employer holds itself as provider?
* Must be yes!
2. AND whether the P looked to the employer for care and relied on employers to select the personnel to provide services to the P?
* Must be yes!
- Apparent Authority Exception
on 2nd question element–> majority rule
o Majority rule on apparent authority is that they do not require reliance element
Nondelegable Duties (ND) Exception
o Employer can still be held liable if they delegate specific duties to the independent contractor where it involves an inherently dangerous activities or peculiar risk of harm
ND Exception focus on unusual danger or public places
- If its construction or repair of things involving unusual danger principal will remain liable
- Work done in a public place ex. next to a sidewalk or roadway or on electric lines–> principal is still liable
ND Exception based upon…
- Prof says its not easy to find and what a delegable duty is bc its all based on public policy
- OR Duties by law that cannot be transferred to another party–>like keeping tenants safe, store safe to customers–>all nondelegable dutie–>thus VL
Types of ND common examples
Such duties include those imposed by a public authority as a condition of granting a franchise
the duty of a condemning agent to protect a severed parcel from damage
the duty of a general contractor to construct a building safely
other types of ND common examples
the duty to exercise due care when an independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken
the duty of landowners to maintain their property in a reasonably safe condition and to comply with applicable safety ordinances
And many are imposed by statute as well
ND Exception
Exception to Peculiar Risks of ND Exception
the exception of peculiar risks does not apply when the independent contractor’s negligence is deemed collateral to the inherent risk of the activity–> then nondelegable duty rule will not apply
In other words means not recognizable in advance as particularly likely to occur/calling for special precautions
ND Exception on illegal activities
employer who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor
