Vicarious Liability - Independent Contractors and Ostensible Agents and Other Forms of Vicarious Responsibility

Question 1

Mavrikidis v. Petullo
Liability for Contractors

Answer 1

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.

Question 2

Liability for Contractors

Answer 2

In general, companies that hire independent contractors will not be held vicariously liable for torts committed by the contractor.

Question 3

Factors for Employee/Employer Relationship

Answer 3

• Selection and engagement of the employee
• Payment of compensation
• Power of dismissal
• The power of control – most important

Question 4

Employee vs. Contractor

Answer 4

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.

Question 5

Incompetent Independent Contractor

Answer 5

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.

Question 6

Non-Delegable Duty Doctrine

Answer 6

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.

Question 7

Pusey v. Bator

Non-Delegable Duty Doctrine

Answer 7

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.

Question 8

Accepted Work Doctrine

Answer 8

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.

Question 9

Apparent Agency

Answer 9

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.

Question 10

O’Banner v. McDonald’s

Apparent Agency

Answer 10

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

Question 11

No Reliance Necessary

Answer 11

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.

Question 12

Partnership

Answer 12

In a partnership, the partners are vicariously liable for each other.

Question 13

Elements of a Joint Enterprise

Answer 13

• An agreement, express or implied
• A common purpose
• A community of interest and
• An equal right of control

Question 14

Joint Enterprise

Answer 14

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

Question 15

Conspiracy

Answer 15

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.

Question 16

Tacit Agreement

Answer 16

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

Question 17

Negligent Entrustment of a Vehicle

Answer 17

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.

Question 18

Liability of an Owner in the Car

Answer 18

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.

Question 19

Bailment of a Car

Answer 19

If an owner lends his car to a competent driver, there is no agency or liability

Question 20

Owner-Consent Liability Statutes

Answer 20

Even if the owner lets a competent driver borrow his car, some state statutes will hold the owner liable for the driver’s negligence.

Question 21

Family-Purpose Doctrine of Vehicle Liability

Answer 21

If a car is for family use, the owner is responsible for the negligence of the family member driving it.

Question 22

Imputed Contributory Negligence: The “Both Ways” Rule

Answer 22

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.