Vicarious Liability and other Miscellaneous Considerations Flashcards
OVERVIEW
1) vicarious liability
types of vicarious liability
1) vicarious liability
types of vicarious liability
a) employer-employee
b) independent contractor situations
c) partners and joint venturers
d) automobile owner for drive
e) bailor for bailee
f) parent for child
g) tavernkeepers
2) multiple defendant issues
a) joint and several liability
b) satisfaction and release
c) contribution and indemnity
3) loss of consortium and tortious interference with family relationships (overview)
a) between spouses
b) parent-child
c) nature of action
4) survival and wrongful death
a) survival of tort actions
b) wrongful death
5) tort immunities
a) intra-family tort immunities
b) governmental tort immunity
c) charitable immunity
1) vicarious liability
vicarious liability is liability that is derivatively imposed – i.e. one person (active tortfeasor) commits a tortious act against a 3rd Party and ANOTHER PERSON (passive tortfeasor) will be liable to the 3rdP for this act
a) employer - employee - what is the doctrine of RESPONDEAT SUPERIOR?
an employer will be VICARIOUSLY LIABLE for tortious acts committed by their employee if the tortious acts occur within the SCOPE OF EMPLOYMENT relationship.
respondent superior –> scope of employment - frolic?
a frolic is allowed and is considered to be within the scope of employment. An employee making a MINOR deviation from their employer’s business for their own purposes is still acting within the scope of employment.
respondent superior - scope of employment -detour?
if the deviation in time or geographic area is SUBSTNATIAL, the employer is NOT liable
are ‘intentional torts’ by the employee within the scope of employment?
usually held that inteitoal tortuous conduct by employees is NOT within scope of employment
what are the exceptions to general rule that intentional tortious conduct not within scope of employment?
1) the employee is FURTHERING THE BUSINESS OF THE EMPLOYER - i.e. removing customers from premisses because they are rowdy;
2) FORCE IS AUTHORIZED in the employment (i.e. a bouncer)
3) FRICTION IS GENERATED by the employment (i.e. a bill collector)
liability for own negligence vs. vicarious liability?
employers may be liable for their own negligence by negligently selecting or supervising their employees (this is NOT vicarious liability)
b) independent contractor situations
in general - the hiring party (PRINCIPAL) will not be vicariously liable for the tortious acts of an iINDEPENDENT CONTRACTOR (AGENT)
exceptions - when hiring party is liable for acts of independent contractor
situations where a duty is simply nondelegable due to public policy considerations
i.e. a duty of a business to keep its premises safe for customers
VIRGINIA DISTINCITON - independent contractor situations
In Virginia, regular and routine maintenance, repair, and janitorial services are nondelegable as a landowner has a duty to maintain the premises in a reasonably safe condition. Thus a landowner could be held vicariously liable for an independent contractor’s negligence in such situations.
However, a landowner will not be held vicariously liable for the negligence of the independent contractor in improvement projects when the contractor has full control over the part of the premises being renovated.
Independent contractor situations –> liability for own negligence
the employer may be liable for their OWN negligence in selecting or supervising the independent contractor
i.e. - hospital may be liable for contracting with an unqualified and incompetent healthcare provider who negligently treats the hospital’s patient) (but this is not vicarious liability)
c) partners and joint venturers
EACH member of a partnership or joint venture is vicariously liable for the tortious conduct of another member COMMITTED IN THE SCOPE AND COURSE OF THE AFFAIRS of the partnership or joint venture
d) automobile owner for driver
the general rule - an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile
what is the ‘family car doctrine’?
in many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owners express or implied permission
VIRGINIA DISTINCTION - family car doctrine
Virginia rejects the family car doctrine. The owner of an automobile is not liable for the tortious conduct of immediate family or household members who are driving with the owner’s permission.
automobile owner for driver –> permissive use
a number of states have gone further than family car doctrine by imposing liability on the owner for damage caused by ANYONE driving with the owner’s CONSENT
however - under a federal statute, rental car companies are NOT vicariously liable for the negligent accidents of their customers even if they do business in a ‘permissive use’ state
automobile owner for driver - liability for own negligence - negligent entrustment
An owner may be liable for their own negligence in entrusting the car to a driver.
Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so. (This is not vicarious liability.)
driver acting as agent for owner
the car owner will be liable if the driver is acting as the owner’s agent - for instance using the car to perform an errand for the owner
e) bailor for bailee
under the general rule - the bailor is NOT vicariously liable for the tortious conduct of their bailee
bailor for bailee - negligent entrustment
bailor may be liable for their OWN negligence in entrusting the bailed object (not vicarious liability)
f) parent for child
COMMON LAW –> a parent is NOT vicariously liable for the tortious conduct of their child
bUT - most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount
VIRGINIA DISTINCTION –> parent for child
in VA - by statute - a parent is liable for willful or malicious damage done by their child to public or private property up to $2,500
parent for child - child acting as AGENT for parents
courts may impose vicarious liability if the child committed a tort while acting as the agent for the paretns
parent for child - parent liable for OWN negligence
the parent may be held liable for their own negligence in allowing the child to do something, for example, use a dangerous object without proper instruction.
Furthermore, if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, they may be liable for not using due care in exercising control to MITIGATE such conduct, for example, by allowing the child to play with other children that they have a history of attacking.
g) tavernkeepers
COMMON LAW - No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct.
MODERN LAW – many states have enacted DRAMSHOP ACTS
what are dramshop acts?
Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron.
Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act.
This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.
2) multiple defendant issues
a) joint and several liability
b) satisfaction and release
c) contribution and indemnity (overview)
a) joint and several liability
common law rule - when 2 or more negligent acts combine to proximately cause an indivisible injury, EACH negligent actor will be jointly and severally liable (i.e. liable to the P for the entire damage incurred).
If the injury is DIVISIBLE - each D is liable only for the identifiable portion
joint and several liability - D’s acting in concert
when 2 or more D’s act in concert and injure the plaintiff, each is jointly and severally liable for the ENTIRE injury. This is so EVEN IF THE INJURY IS DIVISIBLE.
joint and several liability - statutory limitations
Many states have abolished joint liability in cases based on fault either
(1) for those defendants judged to be less at fault than the plaintiff, or
(2) for all defendants regarding noneconomic damages.
In these cases, liability will be proportional to the defendant’s fault.
b) satisfaction and release
SATISFACTION –> recovery of full payment. Only one satisfaction is allowed. Until there is full satisfaction, one may proceed against all jointly liable partners
RELEASE –> a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement
c) contribution and indemnity
Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff
what is CONTRIBUTION?
the rule of contribution allows a D who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it APPORTIONS RESPONSIBILITY among those at fault
what are the methods of apportionment under contribution?
1) comparative contribution
2) equal shares
what is (1) comparative contribution?
most states have comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants
what is (2) equal shares contribution
minority of states - appointment is in equal shares regardless of degrees of fault
for contribution - must the tortfeasor have liability/
the contribution defendant must be originally liable to the Plaitniff
If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity) they are NOT liable for contribution
when is contribution not allowed?
contribution is not allowed among INTENTIONAL tortfeasors
what is (2) indemnification?
indemnification involves shifting the entire loss between or among tortfeasors.
when is indemnity available?
indemnity is available in:
(1) vicarious liability situtations
(2) under strict products liability for the non-manufacturer
(3) what is comparative contribution?
most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants.
This approach also supplants indemnification rules based on identifiable difference in degree of fault.
3) loss of consortium and tortious interference with family relationships (overview)
a) between spouses
b) parent-child
c) nature of action
a) between spouses - loss of consortium and tortious interference with family relationships
either spouse may bring an action for INDIRECT interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.
b) parent-child
a parent may maintain an action for loss of a child services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent.
A child, however, has no action in most states against one who tortuously injures their parent.
c) nature of action
actions for interference with family relationships are derivative. Hence - any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship
4) survival and wrongful death
a) survival of tort actions
b) wrongful death
a) survival of tort actions
survival allows one’s cause of action to survive the death of one or more of the parties. the act apply to actions involving torts to property and torts resulting in personal injury.
However, torts invading intangible personal interests (i.e. defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death
b) wrongful death
Wrongful death act grants recovery for pecuniary injury resulting to the spouse and next of kin.
The decedent’s creditors have no claim against the amount awarded.
Recovery is allowed only to the extent that the deceased could have a recovered in an action had they lived. Hence the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiaries contributory negligence reduces their share of recovery in comparative negligence states.
5) tort immunities
a) intra-family tort immunities
b) governmental tort immunity
c) charitable immunity
a) intra-family tort immunities
traditional view –> one member of a family unit could NOT sue another in tort for personal injury.
TODAY –> most states have abolished spousal immunity.
A slight majority have also abolished parent- child immunity (but generally do not allow children to sue merely for negligent supervision).
Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct, or (2) automobile accident cases to the extent of insurance coverage.
b) governmental tort immunity
in varying degrees, federal, state, and municipal tort immunity has been eliminated.
Where it survives, immunity attaches to governmental, not proprietary, functinos
a) federal governemtas
Federal Tort Claims Act - US has WAIVED immunity for tortious acts.
However - immunity will still attach for
1) assault
(2) battery,
(3) false imprisonment,
(4) false arrest,
(5) malicious prosecution,
(6) abuse of process,
(7) libel and slander,
(8) misrepresentation and deceit, and
(9) interference with contract rights.
when else will the federal government still potentially be liable?
Immunity is also not waived for acts that are characterized as “discretionary” (those involving considerations of political or economic policy, usually made by senior officials); acts termed “ministerial” (those performed at the operational level of government) are not immune from liability.
b) federal governments
most states have substantially waived their immunity to the same extent as the federal government; hence immunity is retained for discretionary acts and for legislative and judicial decisionmaking
VA distinction –>
Virginia permits tort suits against the Commonwealth and transportation districts, with a cap on recovery of either $100,000 OR the limit of liability insurance, whichever is greater.
Virginia retains municipal immunity; hence, municipalities are immune when engaged in governmental functions but may be liable when carrying out proprietary functions.
c) Local Governments
About half of the states have abolished municipal immunity to the same extent as for the state government.
local governments - the public duty rule
Where municipal immunity has been abolished, the “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, because the provision of fire protection services is a public duty.
local governments - distinction between governmental functions and proprietary functions
Where municipal immunity still exists, contrast “governmental” functions (functions that could only be performed adequately by the government) and “proprietary” functions (functions that might as well have been provided by a private corporation).
**Courts limit application of sovereign immunity by not granting it for proprietary functions.
d) immunity of public officials
public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose.
Liability attaches for MINISTERIAL acts
immunity of public officlals - VA DISTINCTION
Generally, government employees will NOT be cloaked in sovereign immunity in cases of
a) gross negligence,
b) intentionally tortuous conduct, or
c) when they act outside the scope of their employment
Charitable Immunity
the majority of jurisdictions have eliminated charitable immunity
Charitable Immunity - VA DISTINCTION
Charitable institutions are immune from liability for negligence arising from acts of their servants and agents IF DUE CARE HAS BEEN EXERCISED IN THEIR SELECTION OR RETENTION
