Vicarious Liability and Multiple Defendants

Question 1

What is the doctrine of vicarious liability? What relationships qualify for this kind of liability?

Answer 1

Vicarious liability is liability that is derivatively imposed. Relationships to keep an eye out for on the MBE:

1. Respondeat Superior/Employer-Employee
2. Independent Contractor
3. Partners and Joint Venturers
4. Automobile Owner and Driver
5. Bailor for Bailee
6. Parent/Child
7. Tavernkeepers

Question 2

When will one find vicarious liability for respondeat superior? What is the difference between a frolic and a detour?

Answer 2

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship.

a. A detour is when an employee makes a minor deviation from his employer’s business for his own purposes, but is still acting within the scope of his employment for the sake of liability. A frolic is when the deviation is substantial in time and geographic area, and therefore, the employer is not liable.
b. Employer is not gnerally liable for intentional torts (because they are not within the scope of employment), except:
i. Force is authorized in the employment (e.g. bouncer).
ii. Friction is generated by the employment (e.g. bill collector).
iii. The employee is furthering the business of the employer (e.g. removing customers from the premises because they are rowdy).

Question 3

When is a principal held liable for tortious acts of an independent contractor?

Answer 3

Generally, principals are not held liable for independent contractor’s tortious acts. The exceptions are:

1. The independent contractor is engaged in inherently dangerous activities, e.g. excavating next to a public sidewalk or blasting.
2. The duty, because of public policy considerations, is simply nondelegable, e.g. the duty to use due care in building a fence around an excavation site.

Question 4

When is an automobile owner liable for the tortious conduct of another person driving his car?

Answer 4

While not generally liable, there are some theories under which he can be held liable:

a. Family Car Doctrine - the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.
b. Permissive Use - the owner is liable for damage caused by anyone driving with the owner’s consent.

New York: there is vicarious liability if someone is in my care permissively.

Question 5

What is joint and several liability?

Answer 5

When two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. This is also true when two actors are acting in concert.

Question 6

What is the difference between contribution and indemnity?

Answer 6

Contribution allows a defendant who pays more than his share of damages under joint and several liability claim against other jointly liable parties for the excess - i.e. it apportions responsibility among those at fault.

Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: (i) by contract, (ii) in vicarious liability situations, (iii) under strict products liability (retailers can be indemnified by manufacturers), and (iv) in some jurisdictions, where there has been an identifiable defference in degree of fault.