Vicarious Liability and Strict Liability

Question 1

When are employers liable?

Answer 1

When they were negligent and when they are vicariously liable based on respondeat superior

Question 2

Respondeat Superior Requirements

Answer 2

1) The actor was an employee as opposed to an independent contractor (control over activity)
2) The acts were within the “scope of employment”

Question 3

What acts are within the “scope of employment”

Answer 3

(1) any act of the kind the employee is employed to perform
(2) Any act that occurs within the authorized time and space, including slight but not major deviations
(a) not a part of the commute (going and coming exception)
(3) Act done, at least in part, by a purpose to serve the employer
(4) If intentional tortious act, it cannot stem from personal animus

Question 4

What constitutes a major deviation from scope of employment? Frolic vs. Detour

Answer 4

Deviation factors: employee’s intent; nature of the deviation; time consumed by deviation; type of work employee performs; employer’s ability to foresee the deviation; amount of freedom allowed to employee in performing job

Permitted detours include acts necessary to comfort, convenience, health, etc. Where employee combines personal and work, still under scope of employment.

Question 5

Going-and-Coming Rule and its exceptions

Answer 5

RS does not extend to employee’s commute.

Exceptions-to-the-Exception:

(1) employee impaired at work and crashed on drive home (drunk driving, inhaling toxic chems)
(2) the car is regularly used for work

Question 6

Independent Contractors and RS

Answer 6

RS does not extend to independent contractors. Employers are not vicariously liable for the actions of independent contractors because they do not control the physical details of their work.

Question 7

What is an independent contractor?

Answer 7

One who performs a service for another according to his own method, free from control and directions, except of results.

Question 8

Exceptions to the Independent Contractors Exception

Answer 8

Apparent authority (based on conduct of employer), non-delegable duties (when independent contractors are doing inherently dangerous work), illegal activities, and negligent hiring/training/supervision

Question 9

Non-Delegable Duties

Answer 9

Even when someone else is obviously at fault, certain duties are considered non-delegable in the sense that the owner retains ultimate responsibility. (ex. owner has non-delegable duty over safe operation of car; shop-owner’s duty to maintain safe premises; etc).

Question 10

Joint Enterprise

Answer 10

Members of a joint enterprise are vicariously liable agents.
Elements:
(1) express or implied agreement among members of a group; (2) a common purpose to be carried out; (3) collective pecuniary interest; (4) equal right of control in enterprise