Vicarious Liability / Joint Enterprise / Bailments

Question 1

Definition of vicarious liability

Answer 1

when one person is made liable for the torts of another.

If an employee commits a tort during the scope of employment, his employer will be liable

Question 2

Respondeat superior

Answer 2

look to the person higher up

Question 3

What is the most difficult question for vicarious liability?

Answer 3

Determining if the EE was acting in the scope of their employment

Question 4

Scope of employment test

Answer 4

the tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose, even if the means he chose were indirect, unwise, and perhaps even forbidden

Question 5

going-and-coming rule

Answer 5

ER is not liable for EE’s actions during their commute to and from work; however, if ER creates a extra risk to the public that manifests itself during the EE’s commute, they are liable

Question 6

What if an employee makes a slight deviation from their work duties, is employer still liable under vicarious liability?

Answer 6

Yes - as long as the deviation is slight

6 factors to determine if deviation is slight:

1 - EE’s intent
2 - Nature, time, and place of deviation
3 - Time consumed in the deviation
4 - Work for which the employee was hired
5 - The incidental acts reasonably expected by the employer
6 - How much freedom was allowed the employee in performing his job responsibilities

(jury decides this)

Question 7

definition of frolic

Answer 7

the pursuit of the employee’s personal business as a substantial deviation or abandonment of the employment

Question 8

definition of detour

Answer 8

deviation that is sufficiently related to the employment to fall within its scope

Question 9

Independent contractor and vicarious liability

Answer 9

ER or party that hires an independent contractor is generally not liable for their torts

Question 10

Test to determine if an employee is an independent contractor

Answer 10

does ER control physical details of the independent contractor’s work?

Question 11

Hospital and vicarious liability

Answer 11

Hospitals cannot be vicariously liable for the negligence of their doctors because doctors have the discretion to do things on their own

Question 12

Exception to independent contractor rule?

Answer 12

non-delegable duty

When the work involves a peculiar risk of physical injury or property damage

Question 13

definition of joint enterprise

Answer 13

like a partnership, except it is generally for a short and specific purpose

Question 14

Elements of joint enterprise

Answer 14

1 - agreement - express or implied between the members of a group
2 - a common purpose to be carried out by the group
3 - a common pecuniary interest (financial interest) in that purpose
4 - an equal right to a voice in the enterprise

Question 15

Liability and Bailments

Answer 15

relationship between a bailor + bailee can make bailor liable for acts of bailee

Question 16

Definition of bailor

Answer 16

someone who has title ownership of property

Question 17

definition of bailee

Answer 17

someone else who is trusted with the property (usually younger, usually not a deep pocket)

Question 18

“family purpose” doctrine

Answer 18

a car owner who lets members of his household drive his car for their own personal use has done so in order to further a “family purpose” or family objective and is vicariously liable

Question 19

definition of strict liability

Answer 19

those who engage in certain kinds of activities do so at their own peril and must pay for any damage that foreseeably results, even if the activity has been carrier out in the most careful possible manner

Question 20

Strict liability and wild animals

Answer 20

strict liability for any kind of damage that results from a dangerous propensity of that species

Question 21

Strict liability and domestic animals

Answer 21

only strict liability where the owner knows or has reason to know of the particular animal’s dangerous characteristics

Question 22

“one bite” rule

Answer 22

every dog is NOT entitled to one free bite because an owner may have reason to know of his pet’s dangerous tendencies due to prior unsuccessful attempts to bite someone or due to its vicious temperament

Question 23

Are firearms abnormally dangerous?

Answer 23

NO - there are steps D can take to mitigate the danger of firearms

Question 24

6 factors to determine if activity is abnormally dangerous

Answer 24

1 - existence of a high degree of risk of some harm to the person, land, or chattels of others
2 - likelihood that the harm that results from it will be great
3 - inability to eliminate the risk by the exercise of reasonable care
4 - extend to which the activity is not a matter of common usage
5 - extent to which its value to the community is outweighed by its dangerous attributes
6 - inappropriateness of the activity is not a matter of common usage

Question 25

Products Liability is an umbrella term for?

Answer 25

umbrella term for the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm caused by the chattel

Question 26

Definition of express warranty

Answer 26

a seller may expressly represent that her goods have certain qualities

Question 27

Definition of implied warranty

Answer 27

the existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the good for sale

Question 28

Restatement’s view on strict tort liability for defective products

Answer 28

1 - one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

The seller is engaged in the business of selling such a product, AND|

It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

2 - The rule stated in Subsection (1) applies although:
1 - The seller has exercised all possible care in the preparation and sale of his product
2 - The user or consumer has not bought the product from or entered into any contractual relation with the seller

Question 29

Ads and brochures - product liability

Answer 29

representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer, may be relied on by the buyer regardless of an absence of privity of contract

Question 30

Manufacturer puts a product on the market that they know will not be inspected - products liability

Answer 30

liable if the product proves to have a defect that causes injury to a human being

Question 31

Design defect v. Manufacturing defect

Answer 31

design defect - all of the similar products manufactured by D are the same and they all bear a feature whose design is itself defective and unreasonably defective

Manufacturing defect - the particular item that injures P is different from the other ones manufactured by D, because something went wrong with the manufacturing process

Question 32

How to prove design defect negligence?

Answer 32

P would need to prove that D manufacturer was negligent by showing that another prudent manufacturer would have designed the product differently

Question 33

What if current product complies with existing level of technological advances at the time of design?

Answer 33

D can still be liable if the design of the product (maybe even the entire category) is such that its risk outweigh its utility

Question 34

Duty to warn of the unknowable danger?

Answer 34

NO - if D can show that it neither knew nor, in the exercise of reasonable care, should have known of a particular danger, no duty!