Vicarious Liability - Independent Contractors and Ostensible Agents and Other Forms of Vicarious Responsibility Flashcards
Mavrikidis v. Petullo
Liability for Contractors
A company is not liable for the negligence of an independent contractor unless the company retains control of the “manner and means” of the work, the company hires an incompetent contractor, or the activity contracted for is inherently dangerous. Defendant contractor caused an accident when transporting liquid asphalt. And plaintiff tried to sue the company that hired it.
Liability for Contractors
In general, companies that hire independent contractors will not be held vicariously liable for torts committed by the contractor.
Factors for Employee/Employer Relationship
- Selection and engagement of the employee
- Payment of compensation
- Power of dismissal
- The power of control – most important
Employee vs. Contractor
Many courts say if the employer has control of the day-to-day operations of a worker, the worker is an employee. If not, she’s an independent contractor. However, people who would normally be classified as independent contractors may be seen as employees if the company that hires them retains enough control.
Incompetent Independent Contractor
If an employer higher an incompetent independent contractor, the company will not be protected from liability. Most courts see this as the employer’s negligence rather than vicarious liability.
Non-Delegable Duty Doctrine
An employer cannot hire an independent contractor to assume a non-delegable duty. For example, if a job is inherently dangerous, an employer can hire an independent contractor to do the work, but the employer still has the duty to minimize risks and will be liable for any harm. A job is inherently dangerous when it creates a particular risk of harm to others unless special precautions are taken.
Pusey v. Bator
Non-Delegable Duty Doctrine
An employer is not liable for the torts of an independent contractor unless the nondelegable duty doctrine applies, which imposes a duty on the employer for inherently dangerous work that creates a peculiar risk of harm unless special precautions are taken. Defendant hired an armed security guard and gave him no instructions except to check the parking lot occasionally. The guard shot and killed Plaintiff and the defendant was liable because it was foreseeable that that kind of harm could occur when hiring an armed guard.
Accepted Work Doctrine
If a land owner hires a contractor to do a job and a third party is hurt after the work is done, the land owner alone is liable for the harm, except if the contractor did his work improperly and negligently caused the risk. However, some courts say the land owner is not liable if he did not or should not have known about defective condition that caused the harm.
Apparent Agency
If a principle creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party relies on the apparent agency and is harmed as result. A principle can be held vicariously liable for the harm done by his apparent agent if the injured party’s harm would not have occurred but for the apparent agency.
O’Banner v. McDonald’s
Apparent Agency
A principle cannot be held liable for its agent’s negligent acts if the plaintiff did not rely on the apparent agency. Plaintiff slipped and fell in a McDonalds. Since no evidence showed Plaintiff relied on apparent agency, McDonalds wasn’t liable
No Reliance Necessary
Some courts hold reliance is not necessary. They look at whether the principle conveyed to the plaintiff that the independent contractor was its agent and the agent reasonable believed that fact.
Partnership
In a partnership, the partners are vicariously liable for each other.
Elements of a Joint Enterprise
- An agreement, express or implied
- A common purpose
- A community of interest and
- An equal right of control
Joint Enterprise
All members are liable when someone outside the joint enterprise is harmed. If one of the members is harmed, the other members are not liable for it
Conspiracy
People who conspire to commit a tort or crime are vicariously liable for each other. The same is true for people who aid and abet them.
Tacit Agreement
If people tacitly agree to commit a tort through their actions, some courts will say they are vicariously liable to one another. Ex. drag racing
Negligent Entrustment of a Vehicle
A defendant may be liable for letting an incompetent driver borrow his car, but there must be proof that the owner knew or should have known that the driver was incompetent.
Liability of an Owner in the Car
If an owner is in the car and allows someone else to drive, he retains legal control and may be liable for not exercising that control.
Bailment of a Car
If an owner lends his car to a competent driver, there is no agency or liability
Owner-Consent Liability Statutes
Even if the owner lets a competent driver borrow his car, some state statutes will hold the owner liable for the driver’s negligence.
Family-Purpose Doctrine of Vehicle Liability
If a car is for family use, the owner is responsible for the negligence of the family member driving it.
Imputed Contributory Negligence: The “Both Ways” Rule
If an employee is negligently driving her employer’s car and gets into an accident with a third party, who is also negligent, the employer is vicariously liable to the third party and the third party is liable to the employer. The employer’s recovery against the third party is reduced or barred on the basis of the employee’s negligence.
