Vicarious Liability and Other Miscellaneous Considerations

Question 1

Vicarious Liability

Answer 1

Vicarious liability is liability that is derivatively imposed. This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.

Vicarious Liability is always based on a relationship.

Question 2

Common Vicarious Liability Relationships

Answer 2

Employer-Employee
Independent Contractor Situations
Partners and Joint Venturers
Automobile Owner for Driver
Bailor for Bailee
Parent for Child
Tavernkeepers

Question 3

Employer-Employee Relationship

Answer 3

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of their employment relationship. This concept is known as “respondent superior.”

Test: Scope of Employment

Question 4

Frolic or Detour

Answer 4

An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment. (minor departure)

If the deviation in time or geographic area is substantial, the employer is not liable. (major departure)

Question 5

Intentional torts (Employee/er)

Answer 5

It is usually held that intentional tortious conduct by employees is not within the scope of employment.

Exceptions:
1. The employee is furthering the business of the employer
2. Force is authorized in the employment (I.e., bouncer)
3. Friction is generated by the employment (I.e., bill collector)

Question 6

Liability for own Negligence (Employer/ee)

Answer 6

Employers may be liable for their own negligence by negligently selecting or supervising their employees (this is not vicarious liability).

Question 7

Independent Contractor Situations

Answer 7

In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent) when the hiring party does not control the manner and method in which the independent contract performs the job. There are public policy exceptions, however, where a duty is simply non-delegable such as the duty of a business to keep its premises safe for customers.

Hiring party generally not liable for torts committed by independent contractors - EXCEPTION: Business owner will remain vicariously liable if independent contractor working on business premises and hurts customer.

Question 8

Joint and Several Liability

Answer 8

P can recover full damages from any D that P chooses

Question 9

Contribution and Indemnity

Answer 9

Contribution: D seeks compensation from co-defendants –> D’s pay percentage for which they are assigned fault –> P goes after one D; the D says to the others pay up your portion. If other D’s are insolvent, paying D bears the risk.

Indemnification: D gets 100% of money back. Indemnity is available in vicarious liability situations and under strict products liability.

Question 10

Loss of Consortium and Tortious Interferences with Family Relationships

Answer 10

Loss of consortium - claim by spouse of injured party, derivative of injured party’s claim.

Derivative - any defenses raised by injured spouse can be raised by consortium spouse.

Typically comes up in loss of household services, loss of companionship/society cases.