Vicarious Liability and other Miscellaneous Considerations

Question 1

OVERVIEW
1) vicarious liability
types of vicarious liability

Answer 1

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

Question 2

1) vicarious liability

Answer 2

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

Question 3

a) employer - employee - what is the doctrine of RESPONDEAT SUPERIOR?

Answer 3

an employer will be VICARIOUSLY LIABLE for tortious acts committed by their employee if the tortious acts occur within the SCOPE OF EMPLOYMENT relationship.

Question 4

respondent superior –> scope of employment - frolic?

Answer 4

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.

Question 5

respondent superior - scope of employment -detour?

Answer 5

if the deviation in time or geographic area is SUBSTNATIAL, the employer is NOT liable

Question 6

are ‘intentional torts’ by the employee within the scope of employment?

Answer 6

usually held that inteitoal tortuous conduct by employees is NOT within scope of employment

Question 7

what are the exceptions to general rule that intentional tortious conduct not within scope of employment?

Answer 7

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)

Question 8

liability for own negligence vs. vicarious liability?

Answer 8

employers may be liable for their own negligence by negligently selecting or supervising their employees (this is NOT vicarious liability)

Question 9

b) independent contractor situations

Answer 9

in general - the hiring party (PRINCIPAL) will not be vicariously liable for the tortious acts of an iINDEPENDENT CONTRACTOR (AGENT)

Question 10

exceptions - when hiring party is liable for acts of independent contractor

Answer 10

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

Question 11

VIRGINIA DISTINCITON - independent contractor situations

Answer 11

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.

Question 12

Independent contractor situations –> liability for own negligence

Answer 12

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)

Question 13

c) partners and joint venturers

Answer 13

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

Question 14

d) automobile owner for driver

Answer 14

the general rule - an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile

Question 15

what is the ‘family car doctrine’?

Answer 15

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

Question 16

VIRGINIA DISTINCTION - family car doctrine

Answer 16

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.

Question 17

automobile owner for driver –> permissive use

Answer 17

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

Question 18

automobile owner for driver - liability for own negligence - negligent entrustment

Answer 18

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.)

Question 19

driver acting as agent for owner

Answer 19

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

Question 20

e) bailor for bailee

Answer 20

under the general rule - the bailor is NOT vicariously liable for the tortious conduct of their bailee

Question 21

bailor for bailee - negligent entrustment

Answer 21

bailor may be liable for their OWN negligence in entrusting the bailed object (not vicarious liability)

Question 22

f) parent for child

Answer 22

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

Question 23

VIRGINIA DISTINCTION –> parent for child

Answer 23

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

Question 24

parent for child - child acting as AGENT for parents

Answer 24

courts may impose vicarious liability if the child committed a tort while acting as the agent for the paretns

Question 25

parent for child - parent liable for OWN negligence

Answer 25

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.

Question 26

g) tavernkeepers

Answer 26

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

Question 27

what are dramshop acts?

Answer 27

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.

Question 28

2) multiple defendant issues
a) joint and several liability
b) satisfaction and release
c) contribution and indemnity (overview)

Question 29

a) joint and several liability

Answer 29

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

Question 30

joint and several liability - D’s acting in concert

Answer 30

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.

Question 31

joint and several liability - statutory limitations

Answer 31

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.

Question 32

b) satisfaction and release

Answer 32

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

Question 33

c) contribution and indemnity

Answer 33

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff

Question 34

what is CONTRIBUTION?

Answer 34

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

Question 35

what are the methods of apportionment under contribution?

Answer 35

1) comparative contribution
2) equal shares

Question 36

what is (1) comparative contribution?

Answer 36

most states have comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants

Question 37

what is (2) equal shares contribution

Answer 37

minority of states - appointment is in equal shares regardless of degrees of fault

Question 38

for contribution - must the tortfeasor have liability/

Answer 38

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

Question 39

when is contribution not allowed?

Answer 39

contribution is not allowed among INTENTIONAL tortfeasors

Question 40

what is (2) indemnification?

Answer 40

indemnification involves shifting the entire loss between or among tortfeasors.

Question 41

when is indemnity available?

Answer 41

indemnity is available in:
(1) vicarious liability situtations
(2) under strict products liability for the non-manufacturer

Question 42

(3) what is comparative contribution?

Answer 42

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.

Question 43

3) loss of consortium and tortious interference with family relationships (overview)

Answer 43

a) between spouses
b) parent-child
c) nature of action

Question 44

a) between spouses - loss of consortium and tortious interference with family relationships

Answer 44

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.

Question 45

b) parent-child

Answer 45

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.

Question 46

c) nature of action

Answer 46

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

Question 47

4) survival and wrongful death

Answer 47

a) survival of tort actions
b) wrongful death

Question 48

a) survival of tort actions

Answer 48

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

Question 49

b) wrongful death

Answer 49

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.

Question 50

5) tort immunities

Answer 50

a) intra-family tort immunities
b) governmental tort immunity
c) charitable immunity

Question 51

a) intra-family tort immunities

Answer 51

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.

Question 52

b) governmental tort immunity

Answer 52

in varying degrees, federal, state, and municipal tort immunity has been eliminated.

Where it survives, immunity attaches to governmental, not proprietary, functinos

Question 53

a) federal governemtas

Answer 53

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.

Question 54

when else will the federal government still potentially be liable?

Answer 54

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.

Question 55

b) federal governments

Answer 55

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

Question 56

VA distinction –>

Answer 56

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.

Question 57

c) Local Governments

Answer 57

About half of the states have abolished municipal immunity to the same extent as for the state government.

Question 58

local governments - the public duty rule

Answer 58

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.

Question 59

local governments - distinction between governmental functions and proprietary functions

Answer 59

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.

Question 60

d) immunity of public officials

Answer 60

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

Question 61

immunity of public officlals - VA DISTINCTION

Answer 61

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

Question 62

Charitable Immunity

Answer 62

the majority of jurisdictions have eliminated charitable immunity

Question 63

Charitable Immunity - VA DISTINCTION

Answer 63

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