Vicarious Liability & Misc.

Question 1

What is vicarious liability? What 7 relationship may give rise to vicarious liability?

Answer 1

Vicarious liability is when A commits act against B and C may be held vicariously liable for A’s tortious conduct.

1. Employer - Employee
2. Independent Contractors
3. Car Owner - Driver
4. Bailor - Bailee (not liable)
5. Parent-Child
6. Tavernkeeper
7. Partner or joint venturer

*remember, always ask if party is (a) vicariously liable AND (b) liable in of themselves

Question 2

When will employer be vicariously liable for tortious acts of EE?

Answer 2

If tortious acts occur within the scope of the employment relationship (“doctrine of respondeat superior”)

note: minor deviations from scope of employment are OK

intentional tortious conduct generally NOT within scope of employment, EXCEPT:

• EE furthering biz of ER (e.g. ousting patrons)
• force is authorized in the employment (e.g. bouncer)
• friction is generated by EE (e.g. bill collector)

Note: negligent hiring is ER’s own negligence

Question 3

When will hiring party be vicariously liable for tortious acts of independent contractor?

Answer 3

Generally not, unless the duty is nodelegable due to public policy considerations (e.g. biz duty to keep premises safe for customers)

Question 4

What is rule wrt vicarious liability in a partnership or joint venture?

Answer 4

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member if it is committed within the cope and course of the affairs of the partnership or venture.

Question 5

When is car owner vicariously liable for tortious acts of driver?

Answer 5

Generally not, but some jdx have following exceptions:

• if driver-owner are within immediate family or household members - driving with permission
• anyone with permissive use to drive (but NOT rental car co’s)
• driver acting as agent to owner - e.g. using car for errand

Question 6

When is a bailor vicariously liable for acts of bailee?

Answer 6

Never

Question 7

When is parent liable for tortious conduct of their child?

Answer 7

Generally not at c/l, but now states have statutes imposing liability if conduct is willful and intentional up to certain dollar amount.

• or while child was acting as agent for parent
• note: parent can be held liable for own negligence (e.g. letting child use dangerous object, due care if know child to be dangerous)

Question 8

When will tavernkeepers be held vicariously liable for tortious conduct by patrons? (e.g. belligerence)

Answer 8

C/l: no liability

Modern: Dramshop Acts - liable for reasonably foreseeable harm resulting from overserving/serving minor

Question 9

What is joint and several liability?

Answer 9

When 2+ negligent acts cause one indivisible injury, then each actor will be jointly & severally liable. That means each is liable for the whole injury, P must recover whole.

(if the injury is divisible, they are only liable for their portion).

When 2+ D’s act in concern each will be J&S liable - even if injury is divisible.

Question 10

When D’s act in concert and injure P what is type of liability that results?

Answer 10

joint and several liability, regardless of whether injury is divisible.

Question 11

In what 2 circumstances have some states abolished J&S liability?

Answer 11

(1) for those D’s judged to be less at fault than P
(2) for all D’s regarding noneconomic damages

In these cases liabiity will be construed proportional to D’s fault.

Question 12

What is satisfaction? what is release?

Answer 12

Satisfaction = recovery of full payment - until then P may proceed against any liable

Release = release from liability - doesnt discharge all tortfeasors unless expressly provided for

Question 13

What is contribution? When does it apply?

Answer 13

Contribution rule allows D who pays over share of damages under J&S liabiity to have claim against other D’s for the excess - i.e. it apportions responsibility among those at fault.

Methods of apportionment are either:

• comparative contribution (i.e. based on relative fault)
• equal share (regardless of fault)

NOT allowed for intentional torts

Question 14

What is indemnification? When does it apply?

Answer 14

Indemnification is when entire loss is shifted among tortfeasors.

It is available in following situations:

• vicarious liability
• SL for products liability for non manufacturer

Question 15

When there are multiple D’s what are the 3 options for how to apportion damages?

Answer 15

• comparative contribution (comparative negligence)
• indemnity (e.g. vicarious liability)
• contribution (J&S liability)

Question 16

Who has claims for loss of consortium?

Answer 16

• spouse for spouse
• parent for child

NOT
- child for parent

Question 17

When does a survival act allow tort claim to survive death of party?

Answer 17

If re tort to property or personal injury - not intangible rights such as defamation, right of privacy, etc.

Question 18

What is wrongful death action?

Answer 18

Gives recovery for pecuniary interest to spouse or next of kin. Treat claim as if coming from decedent themselves. (e.g. ask re their contributory negligence).

Creditors of decedent do not have claim to money.

Question 19

What are 3 cases of immunities from tort?

Answer 19

1. intra-family (but most states no longer have spousal immunity, some abolished parent-child immunity)
   parent-child immunity never applies if its intentional tort or car accident

2, govt tort immunity

 - fed govt has waived immunity for tortious acts except for discretionary acts    - state govts - waived mostly except for discretionary acts, leg/judicial decisionmaking     - local - waived mostly but still immune if re public duty, govt functions vs. proprietary functions (things could be done by private corp)     - public officials carrying out official duties immune for discretionary acts done w/o malice 

3. charitable immunity -mostly eliminated