Vicarious Liability

Question 1

Define Employer

Answer 1

An employer is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

Question 2

Define Employee

Answer 2

An employee is an agent employed by an employer to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the employer.

Question 3

Define Independent Contractor

Answer 3

An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.

Question 4

What is the test used to determine if someone is acting within the scope of their employment?

Answer 4

Conduct of an employee is within the scope of employment if, but only if:

1. It is of the kind he is employed to perform;
2. It occurs substantially within the authorized time and space limits;
3. It is actuated, at least in part, by a purpose to serve the employer; and
4. If force is intentionally used by the employee against another, the use of force is not unexpectable by the employer.

Question 5

What factors are used to determine if an employee was engaged in a slight or substantial deviation?

Answer 5

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; and
6. The freedom allowed the employee in performing his job responsibilities.

Question 6

Although the general rule is that an employer is not vicariously liable for the torts of its independent contractor, there are exceptions to this rule. List the exceptions.

Answer 6

1. If the employer retains control
2. Non-delegable duties (safety statutes)
3. Inherently dangerous activities
4. Maintaining the safety of land and premises
5. Illegal activities
6. Agents with apparent authority

Question 7

List the elements of a joint enterprise

Answer 7

1. An agreement, express or implied, among members of the group
2. A common purpose to be carried out by the group
3. A community of pecuniary interest in that purpose among the members
4. An equal right to a voice in the direction of the enterprise, which gives an equal right of control

Question 8

What is the common law rule regarding the vicarious liability of bailors for the torts of their bailees?

Answer 8

Bailors are not vicariously liable for the torts of their bailees.

Question 9

What are two exceptions to the common law rule regarding the vicarious liability of bailors?

Answer 9

1. Family purpose doctrine

2. Owner consent statutes

Question 10

What is the family purpose doctrine?

Answer 10

If you purchase or supply a car for members of your immediate household to use for non-work purposes and a member of THAT immediate household uses that car, you are liable for the torts they commit while driving the car.

Question 11

What happens in jurisdictions with owner consent statutes?

Answer 11

If the owner of the car consents to letting someone drive their car, then they are vicariously liable for the torts that driver commits while driving the car. If the person you loaned it to loans it to someone else you’re still liable. If there are two vehicle owners both are vicariously liable.

Question 12

Define contribution

Answer 12

An equitable remedy whereby one who is jointly liable with another tortfeasor may recover from the other tortfeasor any amounts he has paid to the plaintiff in excess of his “fair share.”

Question 13

What are 4 contribution rules?

Answer 13

1. You do not have to be a party to the original lawsuit to have a claim brought against you
2. If you are immune from original lawsuit, you’re also immune from contribution claim
3. If you are an intentional tortfeasor, you’ve given up your right to contribution
4. You cannot seek contribution from someone who settled in good faith

Question 14

Define indemnity

Answer 14

1. An equitable remedy where a tortfeasor is entitled to full reimbursement from another joint tortfeasor for amounts he has paid the plaintiff for a liability. The basis of a right to indemnity is that the tortfeasor asserting the right has only a derivative liability based on the misconduct of the other joint tortfeasor, with whom he has a relationship. (see Slocum v. Donahue)
2. A contract or assurance, by which one person engages to secure another against an anticipated loss or prevent him from being harmed by the legal consequences of an act. (see Interinsurance v. Flores)