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Torts II > Vicarious Liability > Flashcards

Vicarious Liability Flashcards

1
Q

What is the rule for Vicarious Liability?

A

Refers to a number of situations in which the tort liability incurred by one party is imputed to another non-tortious party for reasons based on a special relationship between the two parties

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2
Q

What are the possible relationships in VL?

A 
Principle/Agent
Master/Servant
Employer/Employee
Parent/Child
Joint Enterprise
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3
Q

What is the general basis of vicarious liability?

A

liability rests on a special relationship between the D and tortfeasor (relationship). Not a cause of action itself. P must prove that the active tortfeasor committed a tortious act and then find a special relationship to hold the responsible tortfeasor vicariously liable

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4
Q

What are the elements of vicarious liability?

A

Fault

Foreseeability: tort must be not so unusual or startling that it would be unfair to impose L

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5
Q

Contributory/Comparative Negligence General Definition

A

In some circumstances, the negligence of another may be imputed to the P to deny or limit the P’s recovery through contributory or comparative negligence

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6
Q

What is the policy for Contributory/Comparative Negligence?

A

an employer stands to profit from the employee’s services, and employer has some sort of control over his business, including the work of employees

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7
Q

Under what theory can an employer be held liable for an employee?

A

Respondeat Superior

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8
Q

What is the rule for Respondeat Superior?

A

Employers are held VL for the tortious acts committed by their employees while the employee was acting within the “course and scope of employment”

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9
Q

Can employers be held L even if they did not command the action or if they could not foresee, and even if they did not have control?

A

Yes, employers can still be held VL

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10
Q

What is indemnity allowed?

A

it is allowed for the employer to recover from the employee (full amount and the burden shifts to the employee) but not normally sought

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11
Q

When is contribution allowed?

A

it is allowed if the employer is held L they can receive a partial amount from the employee to pay his proportionate share

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12
Q

What is the PP for Respondeat Superior? (4)

A

(1) forces the enterprise to internalize the losses to others caused by its operations (financial responsibility)
(2) provides an incentive to take safety precautions
(3) spread the losses via insurance and the cost of the employer’s goods and services
(4) employers benefit from the employee’s actions (so they should bear the risk, or the costs its undertakings have on others)

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13
Q

What is the justification for the Respondeat Superior policy?

A

1 - the employer has a duty to hire and maintain a responsible staff to control the activities of their employees

2 - the employer most often has easier access to the evidence of the facts surrounding the injury

3 - Deep Pockets

4 - distribute the burden among those benefitting from the enterprise

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14
Q

What is the RULE for Scope/Course of Employment?

A

the employer is L for the torts committed by an employee acting within the course and scope of their employment - (i.e. using a personal car for business does NOT take someone out of the SOE)

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15
Q

Define the term Scope of Employment

A

acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service are within the scope of employment

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16
Q

Define the term Employment

A

contemplates a continuing relationship and a continuing set of duties that the employer and employee owe to one another

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17
Q

What are the (4) factors to consider when determining the scope of employment?

A

(1) general character of the employment
(2) the nature of the employee’s tortious act
(3) the purpose of the employee’s act; and
(4) the time and place of injury

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18
Q

What are the TWO rules under Scope of Employment:

A

Going and Coming Rule

Slight Deviation Rule

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19
Q

What is the going and coming rule?

A

an employee, during commute is not generally within the course and scope of employment

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20
Q

What are the exceptions to the Going and Coming Rule: (4) and define them

A

(1) employee endangers others with a risk arising from or related to work (foreseeability test)
(2) special hazards - where the travel to the place of work creates a special hazard, or involves special risks, or is part of a specific job (to which the employer has consented)
(3) time and travel - where the employee is given a task to complete for the employer on the way to or from work
(4) Dual Purpose - where one performs additional service for the employer, not common to the ordinary commute to work - the employee is rendering incidental benefits to the employer

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21
Q

What is the Slight Deviation Rule?

A

it must be determined whether the employee was on a frolic or detour, the latter is a deviation that is sufficiently related to the employment to fall within the scope, the former is the pursuit of the employee’s personal business as a substantial deviation from or abandonment of the employment

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22
Q

What are the (6) factors to determine the degree of deviation?

A

(1) employee’s intent
(2) nature, time, and place of deviation
(3) time consumer in deviation
(4) work for which the employee was hired
(5) incidental acts reasonably expected by the employer
(6) the freedom allowed for the employee in performing his job

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23
Q

Define ‘detour’

A

a less serious deviation from the employee’s regular business to justify employment duties that still sufficiently relates the employer’s business to justify imputing VL (within SOE) - employer is liable for torts committed during detours.

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24
Q

What are the factors that are incidental to employment (within the scope) (4)

A

1) Smoking (negligent handling of cig leads to P’s injury)
2) Drinking
3) Using the toilet
4) getting coffee

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25
Q

Define ‘frolic’

A

occurs when the employee departs from the course and scope of employment to a significant degree in pursuit of the employee’s personal interest that is not directly related to the employment itself. Employer is NOT liable for torts committed during frolics.

26
Q

What is COMPLETE ABANDONMENT

A

can depart without even leaving workplace, may do so by taking up a task alien to the work they are employed to do

27
Q

What is the policy for the Slight Deviation Rule?

A

the employer cannot insulate himself from L by imposing safety rules or by instructing his employees to proceed carefully - no matter how specific and detailed his orders may be

28
Q

What test is used for intentional torts?

A

Dual Purpose Test

29
Q

What is the RULE for the Dual Purpose Test for Intentional Torts?

A

if an employee asserts an intentional tort then it is presumed outside the scope of employment

30
Q

What is the exception to the Dual Purpose Test?

A

(1) if the actual responsibilities of the employee are such that would be foreseeable for the employer that an intentinal tort might occur – a) at least some part of the employee’s action must be in furtherance of the business (not just personal_

31
Q

Punitive Damages under VL RULE

A

against the concept of VL - only some uphold punitive if ex. where the employer has become directly involved in authorizing or subsequently ratifying certain types of aggravated misconduct by employees

32
Q

What damages are recoverable from the employer?

A

Compensatory damages

33
Q

What is Direct v. Indirect Liability? Define each:

A

Indirect Liability: the D (employer) whom liability is being asserted has NOT actually done (or failed to do) anything for which tortious liability could be found directly (indemnity)

Directly Liability: in many VL situations, a D (employer) can also be held directly responsible for some actual tortious misconduct (contribution)

34
Q

What is the importance of Direct v. Indirect L?

A
  • if you can show direct L, can get punitive damages
  • in indirect L, P has an additional burden to prove a special relationship between the tortfeasors
  • DL is more culpable than indirect L
35
Q

What are the (4) policy theories behind VL and define them:

A

Control Theory: liability when the act of the employee was committed with implied authority, acquiescence or ratification of the employer

Enterprise Theory: whether the employer’s enterprise benefitted by the context of the employee’s act but for the unfortunate injury

Predominant Motive Test: the fact that the predominant motive of the servant benefits himself or a third party does not prevent him from being in SOE

Foreseeability: whether the tortious conduct was reasonably foreseeable - employer should be held to anticipate and allow for risks to the public that arise out of and in the course of employment

36
Q

Can employer be VL for Independent Contractor?

A

NO

37
Q

What is the RULE for an IC? and definition:

A

any employer who hires an IC cannot be held VL for torts committed by an IC

definition: one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service, except as the result thereof

38
Q

What is the TEST to determine if employee is an IC?

A

RIGHT OF CONTROL over the physical details of work

39
Q

What is the (10) FACTOR TEST under IC?

A

(1) Extent of control which, be agreement, master may exercise over details of the work
(2) Whether or not employed is engaged in a distinct occupation or business
(3) Kind of occupation usually done under direction or by specialist without supervision
(4) skills required in particular occupation
(5) whether employer supplies instruments/tools in place of work for person doing the work
(6) length of time of employment
(7) method of payment
(8) whether work is part of the regular business of the employer
(9) whether or not the parties believe they are creating a master and servant relationship
(10) whether principle is or is not in business

40
Q

What is the reasoning behind an employer not being held VL for an IC?

A

because an IC is outside the scope of an employer, the employer does not oversee what the contractor does and they are not in control of what they do

41
Q

What are the EXCEPTIONS to IC? (5) and define:

A

(1) Intrinsically dangerous work: where the contract requires inherently dangerous work by its nature, present a special danger that simply cannot be eliminated even by the exercise of the greatest degree of care - does not need to be abnormally dangerous

(2) non-delegable duties: where the principle is charged by law with the duty breached (non-delegable duties)
- non-delegable duties definition: operates not as a substitute for L based on N, but to ensure that there will be a financially responsible D available to compensate for the N harms caused by the D’s activities;

(3) Where the work will create a nuisance
(4) Peculiar risks: where the work will involve peculiar risks of harm that are different from the ordinary risks associated with the particular work activity in question

(5) Apparent Authority: one who expressly or impliedly represents that another party is his servant or agent may be held VL for the latter’s negligent acts to the extent that the representation –
a. made to a 3rd party and 3rd party relies on it to his detriment
b. VL will apply when someone makes a representation whether there is a relationship or not

(6) Where the act is illegal

42
Q

What are the TWO times a duty is non-delegable?

A

(1) activity that threatens grievous bodily harm, not carefully maintained and hired an IC to maintain it
(2) negligence in statute

43
Q

Are shareholder L for the torts of employees of a corporation?

A

NO

44
Q

What can point to DL?

A

Negligent selection of a contractor

45
Q

RULE for Joint Enterprise and Joint Venture:

A

where the D has agreed in advance of the tortious activity to participate with the other persons in a specific activity which subsequently produces an injury to the P

46
Q

What are the Elements of a Joint Enterprise and Joint Venture: (4)

A

(1) Some type of agreement among the participants in the activity in question (express or implied)
(2) Common purpose
(3) An equal right of control over the activity involved
(4) Community interest

47
Q

Define Joint Venture:

A

involves a special relationship among two or more persons with respect to a single business activity (usually undertaken for profit)

48
Q

Define Joint Enterprise and its essential elements (4):

A

involves a similar relationship among two or more persons with respect to a non-business activity

(1) must have an agreement, express or implied, by members of the group
(2) common purpose
(3) pecuniary interest in that purpose, commercial
(4) equal right to a voice in the direction of the enterprise, giving an equal right

49
Q

What is the RULE for BAILMENTS:

A

bailment does not make a bailor VL for the acts of the bailee in the use of a chattel – look for negligent entrustment: the owner/bailor may be L in entrusting the chattel to the bailee based on presumption that owner of vehicle controls it.

50
Q

Are rental agencies held L for injuries arising out of use of a rental car?

A

NO

51
Q

What are the exceptions to bailments (2):

A

Family Car Doctrine - places L on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner’s family

Graves Amendment - No VL for injury or damage arising out of the use of a rented vehicle or leased by someone in the business of renting or leasing motor vehicles

52
Q

What is the RULE for Imputed Contributory Negligence?

A

While CN bars a P from recovering, imputed CN just focuses on the wrongdoers’ relationship with the P

53
Q

What is the RULE for a Car Owner and Car Accident? What kind of entrustment is it?

A

an owner of a car may be found L for tort of negligent entrustment when the owner permits another to use the car, when the owner knows, or reasonably should know, that the other person is likely to use the car in a manner likely to cause injury to others

Negligent Entrustment - negligent action of the car owner

54
Q

What is the premise of the Doctrine of Imputed Negligence?

A

premised on the car owners’ ownership and presence at the time of the accident, not on any negligence of the car owner

55
Q

What is the major theory in Imputed Contributory Negligence?

A

Both-Ways Theory

56
Q

What is Both-Ways Theory? and what is its test?

A

doctrine of imputed negligence has been applied not only to hold an owner/passenger L to an injured owner/passenger on the ground of contributory negligence but if VL is available of either side, then imputed contributory negligence should be allowed

TEST: if negligence can be imputed, CN will be also:

(1) cannot impute CN unless the other person can be held VL
(2) CN will be imputed only if relationship is one which would make P VL if he were a D

57
Q

Will the negligence of the driver be imputed to the passenger if they are NOT in a master-servant relationship or joint venture?

A

YES

58
Q

What are Derivative Claims and when do they arise?

A

when a claim is derivative in nature (loss of consortium or wrongful death) the CN of an injured party will usually be imputed to P bc P’s claim derived from that of the injured party

59
Q

Will the CN of an EMPLOYEE be imputed to the Plaintiff EMPLOYER?

A

YES

60
Q

What are (3) areas where Imputed Contributory Negligence has been REJECTED?

A

(1) Driver and passenger - passenger in authomobile can be charged with CN of his own if he, for example, grabs the steering wheel or distracts the driver
(2) Parents and Child - the child always has been held to be entitled to the separate ownership of his property, to the enforcement of his COA and to be L as an individual for his own torts
(3) Husband and wife

Torts II (4 decks)

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