Vicarious Liability

Question 1

Vicarious Liability Issue:

Answer 1

The issue is whether the employer will be liable for the acts committed by employee under vicarious liability

Question 2

Tortfeasor’s actions:

Answer 2

Negligent
Intentional Tort
Strict Liability
Other

Question 3

Relationship:

Answer 3

Employer/Employee
Employer/Independent Contractor
Joint Enterprise
Bailment

Question 4

If employer/employee

Answer 4

“Scope of Employment”

the issue is whether the employee was acting within the scope of employment

Question 5

Vicarious Liability Rule:

Answer 5

If at the time of his negligent or reckless act, the servant was acting in the course and scope of his employment, then his employer is vicariously liable to the P for his servant’s torts. No liability for intentional torts

Question 6

Factors to consider whether the employee was acting within the scope of employment:

Answer 6

1. Amount of control over tortfeasor
2. Motivation to serve further purpose for employer
3. Character of act: how close what it is required for employee to do
4. Frolic/Detour
5. Going/Coming Rule
6. Modern Trend: Foreseeability

Question 7

SN: Amount of control over tortfeasor

Answer 7

1. How much control does the employee have over the details of the work
2. Is the actor engaged in distinct occupation or business
3. Who supplies the tools and place of work
4. How long is the person employed
5. Are they paid by the hour or to do a particular job until complete
6. How do the parties understand the relationship

Question 8

SN: Motivation to serve for further purpose of employer

Answer 8

You can do it!!!

Question 9

SN: Character of act

Answer 9

What was the employee hired to do

How close is the act of the employee, to the require acts of the job description

Question 10

SN: Frolic/Detour

Answer 10

Frolic:
a gross deviation/ substantial deviation that will break off liability to the employer (no VL) or if an abandonment of employment
Detour:
slight deviation but will maintain VL
Dual Purpose:
may be considered within the scope of employment because employee’s status had more authority or grounds to do multiple task

Question 11

O’Shea Factors:

Answer 11

1. Employee’s intent
2. Nature, time, and place of deviation
3. Time consumed in the deviation
4. Work in which employee was hired
5. Incidental acts reasonably expected by the employer
6. and the freedom allowed the employee in performing his job responsibilities

Question 12

SN: Coming/ Going Rule:

Answer 12

unless there is a dangerous condition; employer is generally not responsible for employee going or coming from work

Question 13

SN: Foreseeability:

Answer 13

Modern trend: foreseeable danger that the employer should have seen in the workplace

Question 14

If Employer/ Independent Contractor: Issue

Answer 14

Issue: whether party is employee or independent contractor

Question 15

Factors help determine employee or independent contractor

Answer 15

1. How much control does the employer have over the details of the work
2. Is the actor engaged in a distinct occupation or business
3. Does the employer supervise
4. Who supplies the tools and place of work
5. How long is the person employed
6. Are they paid by the hour or to do a particular job until complete
7. How do the parties understand the relationship

Question 16

Independent Contractor Exceptions:

Answer 16

1. Non-delegable duty: Restatement 423/424
2. Employer Negligence
3. Inherently dangerous activities
4. Illegal Activities

Question 17

SN: Restatement 423:

Answer 17

One who carries an activity, which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained and hires the contractor to maintain such instrumentality is liable

Question 18

SN: Restatement 424:

Answer 18

One who by statue or administrative regulations is under a duty to provide specified safeguards ore precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by failure of a contractor employed by him to provide such safeguards or precautions

Question 19

Joint Enterprise:

Answer 19

Issue: whether if both parties are liable under joint enterprise

Question 20

Joint Enterprise elements:

Answer 20

1. Contract Agreement (express or implied)
2. Common purpose or goal
3. Collectively pecuniary interest in the venue
4. Roughly equal right of control of enterprise

Question 21

Bailment:

Answer 21

a legal relationship where physical possession of personal property is transferred from one person (bailor) to another person (bailee) who subsequently hold possession of the property

Question 22

Bailment Scenarios:

Answer 22

1. If bailor is negligent = primary negligence
2. If bailor is not negligent and owner not present = no VL unless family doctrine applies
3. If bailor is not negligent but owner is present = VL

Question 23

Policy Justification

Answer 23

1. Exercise of control
2. Risk Spreading
3. Internalizing the social cause of activities

Question 24

Exercise of control:

Answer 24

1. If serious penalty, it is assumed that rational employers will take steps to ensure employees avoid injuring 3rd parties
2. Rational employers may choose to rely on independent contractors for risky operation and process

Question 25

Risk Spreading:

Answer 25

Impose action connected to it, even if degree removed, rather than on the person who suffered injury or loss (deep pockets)

Question 26

Internalizing the social cause of activities

Answer 26

1. Employer passes the cost of compensating injury or loss to customers or clients 2. As a result, private cost of the product or service will be better reflect its social cost