Vicarious Liability Flashcards
What are the three types of relationships that may be imposed in vicarious liability?
- Parent and Child
- Automobiles (owner and driver)
- employer and employee.
Employer and Employee BLL
An employer is liable for the negligent, willful, malicious, or even criminal acts of his employees when those acts are committed within the scope of employment.
If employee is not negligent, there is no vicarious liability.
What are the two tests if the employee was an employee.
- Was the employee serving to benefit the employer?
2. Did the employer have control?
Going and coming Rule
an employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts. There is an exception that the going and coming rule where the trip involves an incidental benefit to the employer.
Exceptions to the going and coming rule
- Employee is engaged in a special errand or mission on the employer’s behalf
- Employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work related tasks
- The employee is on-call
If the court characterizes the departure as a mere detour, the employer will remain liable. If court see it as a frolic, then there is no vicarious liability.
Personal Acts in Employment
Purely personal acts maybe within the scope of employment because the acts are incidental to the employee’s performance of assigned work.
Employee’s Acts
If the employee’s acts inflicts injury out of personal malice, engendered by the employment, the employer is not liable.
What are the policy goals of respondeat superior?
- Preventing future injuries
- Assuring compensation to victims and
- Spreading the losses caused by an enterprise
What are the factors to consider whether a principal-agent relationship exists?
- The selection and engagement of the servant (selection process)
- Payment of wages (wages)
- Power to discharge (firing)
- Power to control the servant’s conduct (control)
- Whether the work is part of the regular business of the employer (regular business)
Non-delegable duty doctrine
one who uses an independent contractor to do inherently dangerous work creating a peculiar risk is vicariously liable for the torts of the contractor.
Apparent Agency
If a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party reasonably relies on the apparent agency and is harmed as a result.
Incompetent Contractor Exception
To prevail against the principal of hiring an incompetent contractor, the PL must show the contractor was incompetent or unskilled to perform the job for which he or she was hired and the harm that resulted arose out of the incompetence and the principal knew or should have known of the incompetence.
Independent contractor no vicarious liability override test:
- Control test: does the person who hired the independent contractor have control on what he or she does
- Is the independent contractor pretending to be the principle or being an employee of the employer?
- Non delegation: is the firm engaged in inherently dangerous activity. Is it risky behavior?
General strict liability rule
- Imposes a common requirement.
- Must be inherently dangerous.
If PL can show DF meets both criteria, then you have a strong case in imposing strict liability.
General Goals of Tort Law:
- Moral Responsibility
- Corrective Justice (corrects moral imbalance)
- Social Policy (not just for the individual but for the good of society- economic, public welfare, health)
- Legal Process/Litigation
- Providing compensation (loss spreading)
- Deterring unsafe conduct
- Economic Analysis- Is the accident worth saving? B/c it costs money to avoid accidents. Saving v. Injury Costs
- Public Policy wants people to fulfill contracts
