Vicarious Liability Flashcards
Vicarious Liability - Employee
Birkner Test - PBM
1) Act employee was hired to PERFORM - scope of employment
2) Act within hours + spatial BOUNDARIES of job
3) Act MOTIVATED in part by serving the employer’s interests
Vicarious Liability - Independent Contractor (Determining if independent contractor - TWO TESTS)
TWO TESTS
Test 1: Determining independency - STOP
-SUFFER profit/loss?
-TRADITIONAL salary?
-ONE time employment/continuing employment?
-PROVIDES tools + equipment?
Test 2: ABC Test - IWW
-INDEPENDENTLY performs work
-WORKS outside the employer’s line of business
-WORK is part of independent trade, occupation, or business
If independent contractor, no liability unless
1) Non-delegable duty - MAL
- MEMBER of public at large
- Risky ACTIVITY
- LEGISTLATIVE/administrative
2) Ostensible Agency (Novak/Agency + Tort) - ABJD
- AFFIRMATIVE representation (agency)/ BELIEF by victim
- JUSTIFIABLE reliance
- DETRIMENTAL reliance
