Vicarious Liability Flashcards
What is Vicarious Liability?
Vicarious liability is secondary liability imposed upon a supervisor or other controlling party for the acts done by a subordinate because of the relationship between the principal and the agent.
Vicarious liability occurs when a party is liable for the tortious conduct of another because of the relationship between the tortfeasor and the party to whom the liability is imputed.
Within Vicarious Liability, what is the doctrine of Respondeat Superior?
Latin for “let the superior answer”. Respondeat superior embodies the general rule that an employer is responsible for the negligent acts or omissions of its employees. Under respondeat superior an employer is liable for the negligent act or omission of any employee acting within the course and scope of his employment.
What is the general rule with regard to scope of employment under Respondeat Superior?
An employer is liable for the torts of an employee if committed within the “scope of employment”.
Is Respondeat Superior usually limited to Negligent Conduct?
Yes
Under Respondeat Superior, will the employer be vicariously liable if the employee’s act occurs outside the scope of employment?
No
Under Respondeat Superior, are intentional torts and criminal acts generally considered outside the scope of employment?
Yes. Generally, an employer can be vicariously liable for an employee’s negligence but will not be liable for intentionally wrongful or criminal acts, such as assault, unless the employee’s intentionally wrongful acts were either required by the employment or were foreseeable.
Under Respondeat Superior, when are intentional torts and criminal acts not considered outside the scope of employment?
When 1) Force is authorized in the employment 2) Friction is generated by the employment, or 3) The servant is furthering the business of the master
Under Respondeat Superior, what is Frolic and Detour?
Frolic and Detour is a phrase describing actions taken by an employee that fall in varying degrees outside of the scope of employment.
It often applies when a person is driving a vehicle as part of their employment.
Under Respondeat Superior - Frolic and Detour, what is a Frolic?
Substantial Deviation. Pursuit of an employee’s personal business resulting in a substantial deviation from (or an abandonment) of the employment.
Under Respondeat Superior - Frolic and Detour, when the negligent act has occurred during a “Frolic”, is the employer vicariously liable?
No
Under Respondeat Superior - Frolic and Detour, what is a Detour?
Slight deviation. Minor deviation that is sufficiently related to the employment to remain within the scope of the employment.
Under Respondeat Superior - Frolic and Detour, when the negligent act has occurred during a “Detour”, is the employer vicariously liable?
Yes
Under Respondeat Superior, is there any liability to employers for employees who are “going-and-coming” to work?
No
Within Vicarious Liability, what is an Independent Contractor?
One who 1) is engaged to perform certain service for another according to his own methods and manner, and 2) is free from control or direction of his employer in all matters connected with the performance of the service except as to the results.
Is an employer vicariously liability for Independent Contractors?
No, an employer is generally not vicariously liable for the torts of independent contractors
What two exceptions make an employer vicariously liable for Independent Contractor’s?
1) When the Contractor is engaged in inherently dangerous activity, or 2) the duty, because of public policy considerations, is nondelegable
Within Vicarious Liability, what four conditions may the employer be directly liable for?
1) Negligent hiring (for Independent Contractors - negligent selection) 2) Negligent retention 3) Negligent training 4) Negligent supervision
Within Vicarious Liability, what is the liability with regard to a Joint Enterprise?
When two people are in a business venture and have a common purpose and mutual right of control, then each may be vicariously liable for the tortious acts committed by the other/s (as long as) the tort is committed within the scope off that venture.
Within Vicarious Liability, what is the liability with regard to a Partnership?
When two people are in a business for profit, then each may be vicariously liable for the tortious acts committed by the other partner/s (as long as) the tort is committed within the scope of the partnership
Within Vicarious Liability, what is Bailment?
What is the general rule of liability with regard to Bailments?
Bailment is a relationship by which possession and control of property is temporarily delivered to another for safekeeping.
The bailor is not vicariously liable for the tortious conduct of the bailee.
Within Vicarious Liability - Bailments, what is the general rule of liability with regard to Automobile Owner for Driver?
Automobile owners are not vicariously liable for the tortious conduct of another person driving their automobile.
Within Vicarious Liability - Bailments, what are the three exceptions to the general rule of liability with regard to Automobile Owner for Driver?
1) Family car doctrine 2) Permissive use statutes 3) Negligent entrustment
Within Vicarious Liability - Bailments - Automobile Owner for Driver - Exceptions - what is the Family Car Doctrine?
Many states hold the owner of a vehicle liable for tortious conduct of immediate family or household members who are driving with the owners express or implied permission.
Within Vicarious Liability - Bailments - Automobile Owner for Driver - Exceptions - what are Permissive Use Statutes?
Some states impose liability on an owner for damage caused by anyone driving with the owners consent.
Within Vicarious Liability - Bailments - Automobile Owner for Driver - Exceptions - what is Negligent Entrustment?
Negligent entrustment provides for the recovery of damages when a person puts a dangerous device in the hands of a person who is not equipped to handle it properly.
In this case, an owner may be liable for her own negligence in entrusting her car to a driver (this is not vicariously liability).
Within Vicarious Liability, what is the common law and modern rule with regard to liability between Spouses?
Common law - a husband was liable for the torts of his wife. Modernly - a spouse is not liable for the torts of the other spouse.
Within Vicarious Liability, what is the common law and modern rule with regard to liability of a Parent for a Minor Child?
Common law - a parent is not vicariously liable for the torts of their minor children. Modernly - most states, by statute, make parents liable for the intentional torts of their minor children up to a certain dollar amount.
Within Vicarious Liability, what is Imputed Contributory Negligence?
What are the rules of Imputed Contributory Negligence with regard to a third-party?
Imputed contributory negligence occurs when negligence is imputed to a plaintiff. For example, the contributory negligence of an employee is imputed to an employer when the employer sues a tortfeasor involved in an accident with the employee.
The both-ways test states that contributory negligence must be imputed if ordinary negligence would have been, and vice versa.
Rules: Using the “Both-ways test”, a plaintiff will have imputed contributory negligence only where the plaintiff would have been vicariously liable for the negligence by the third party.
Within Vicarious Liability, what are the rules of Imputed Contributory Negligence with regard to employees and employers?
Contributory Negligence of employees will be imputed to employer
Within Vicarious Liability, what are the rules of Imputed Contributory Negligence with regard to Joint Venturer or Partner?
Contributory negligence of joint venturer or partner will be imputed to other joint venturer or partner
Within Vicarious Liability, what are the rules of Imputed Contributory Negligence with regard to Spouses?
Contributory negligence of spouse will not be imputed to the other spouse
Within Vicarious Liability, what are the rules of Imputed Contributory Negligence with regard to Parents and Children?
Contributory negligence of parent will not be imputed to child (nor child to parent).
What is the difference between a Joint Venture and a Partnership?
A joint venture can be described as a contractual arrangement between two or more entities that aims to undertake a specific task. A partnership involves an agreement between two or more parties wherein they agree to share the profits as well as any loss incurred in a single venture.
