Vicarious Liability & Other Miscellaneous Considerations

Question 1

Vicarious Liability

Answer 1

• One person (active tortfeasor) commits tortious act against 3rd party & another person (passive tortfeasor) will be liable to 3rd party for act.

Question 2

VL: Employer-Employee

Answer 2

• Employer will be vicariously liable for tortious acts committed by their employee if tortious acts occur w/in scope of employment relationship.
• “doctrine of respondeat superior.”

Question 3

EE: Frolic & Detour

Answer 3

• Employee making a minor deviation from employer’s business for their own purposes is still acting w/in scope of employment.
• If deviation in time/geographic area is substantial, employer is not liable.

Question 4

EE: Intentional Torts

Answer 4

• Intentional tortious conduct by employees is not w/in scope of employment.
• Unless:
  (1) Employee is furthering business of employer, (ex. removing customers from premises b/c they are rowdy)
  (2) Force is authorized in employment (ex. bouncer)
  (3) Friction is generated by employment (ex. bill collector)

Question 5

EE: Liability for Own Negligence

Answer 5

• Employers may be liable for their own negligence by negligently selecting/ supervising their employees. (not vicarious liability.)

Question 6

Independent Contractor Situations

Answer 6

• Hiring party will not be vicariously liable for tortious acts of independent contractor.
• Unless a duty is nondelegable due to public policy (ex. duty of a business to keep its premises safe for customers)

Question 7

IC: Liability for Own Negligence

Answer 7

• Employer may be liable for their own negligence in selecting/supervising independent contractor (ex. a hospital may be liable for contracting w/ unqualified & incompetent health care provider who negligently treats hospital’s patient).
• (not vicarious liability.)

Question 8

Partners & Joint Venturers

Answer 8

• Each member of partnership/joint venture is vicariously liable for tortious conduct of another member committed in scope & course of the affairs of partnership/joint venture.

Question 9

Automobile Owner for Driver

Answer 9

• Automobile owner is not vicariously liable for tortious conduct of another person driving their automobile.

Question 10

AOD: Family Car Doctrine

Answer 10

• In many states, owner is liable for tortious conduct of immediate family/household members who are driving w/ owner’s express/implied permission.

Question 11

AOD: Permissive Use

Answer 11

• Some states have now gone further by imposing liability on owner for damage caused by anyone driving w/ owner’s consent.
• Fed statute: rental car companies are not vicariously liable for negligent accidents of customers even if they do business in a “permissive use” state

Question 12

AOD: Liability for Own Negligence - Negligent Entrustment

Answer 12

• Owner may be liable for their own negligence in
  entrusting car to driver.
• Some states also impose liability on owner if they were present in car at time of accident, on the theory they could have prevented negligent driving, & hence were negligent in not doing so. (This is not vicarious liability.)

Question 13

AOD: Driver Acting as Agent for Owner

Answer 13

• Car owner will be liable if driver is acting as owner’s agent, for instance using car to perform an errand for owner.

Question 14

Bailor for Bailee

Answer 14

• Bailor is not vicariously liable for tortious conduct of their bailee.

Question 15

BB: Negligent Entrustment

Answer 15

• Bailor may be liable for their own negligence in entrusting bailed object. (This is not vicarious liability.)

Question 16

Parent for Child

Answer 16

• Parent is not vicariously liable for tortious conduct of their child at CL.
• Note, however, that most states, by statute, make parents liable for willful & intentional torts of their minor children up to certain dollar amount (ex. $10,000).

Question 17

PC: Child Acting as Agent for Parents

Answer 17

• Cts may impose vicarious liability if child committed tort while acting as agent for parents

Question 18

PC: Parent Liable for Own Negligence

Answer 18

• Parent may be held liable for their own negligence in allowing child to do something (ex. use a dangerous object w/o proper instruction)
• Furthermore, if parent is aware of child’s conduct on past occasions showing tendency to injure another’s person/property, they may be liable for not using due care in exercising control to mitigate such conduct, (ex. by allowing child to play w/ other children they have a history of attacking).

Question 19

Tavernkeepers

Answer 19

Dramshop Act
- Such acts usually create a COA in favor of any 3rd person injured by intoxicated patron.
- Several cts have imposed liability on tavernkeepers even in absence of a Dramshop Act.
- This liability is based on ordinary negligence principles (foreseeable risk of serving minor/ obviously intoxicated adult) rather than vicarious liability.

Question 20

Tip:

Answer 20

When you see an MBE question on vicarious liability, recognizing whether doctrine applies is only first step in analysis. Even if D is not vicariously liable, P may prevail if D personally was negligent in supervising person causing injury/in entrusting a dangerous object to someone not equipped to handle it. Always look for this option among your answer choices.

Question 21

Multiple D Issues: Joint & Several Liability

Answer 21

• CL: when 2/more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly & severally liable (liable to P for entire damage incurred).
• If injury is divisible, each D is liable only for identifiable portion.

Question 22

JSL: Defendants Acting in Concert

Answer 22

• When two/more Ds act in concert & injure P, each is jointly & severally liable for entire injury.
• This is so even if injury is divisible.

Question 23

JSL: Statutory Limitations

Answer 23

• Many states have abolished joint liability in cases based on fault either:
  (1) for those Ds judged to be less at fault than P, or
  (2) for all Ds regarding noneconomic damages.
• In these cases, liability will be proportional to D’s fault.

Question 24

Satisfaction

Answer 24

• Recovery of full payment is a “satisfaction.”
• Only one satisfaction is allowed.
• Until there is satisfaction, however, one may
  proceed against all jointly liable parties.

Question 25

Release

Answer 25

• In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Question 26

Tip:

Answer 26

Keep in mind that neither of these doctrines affects how much P receives. Rather, they deal w/ claims by D against other joint
tortfeasors to determine how much of the total award each of them ultimately must pay.

Question 27

Contribution

Answer 27

The rule of contribution allows D who pays more than their share of damages under joint & several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault.

Question 28

Methods of Apportionment: Comparative Contribution

Answer 28

Comparative contribution system; contribution is imposed in proportion to relative fault of various Ds.

Question 29

.

Answer 29

.

Question 30

MOA: Contribution Tortfeasor Must Have Liability

Answer 30

• The contribution D must be originally liable to P.
• If contribution D has a defense that would bar liability (such as intra-family tort immunity), they are not liable for contribution.

Question 31

MOA: Not Applicable to Intentional Torts

Answer 31

• Contribution is not allowed among intentional tortfeasors.

Question 32

Indemnification

Answer 32

• Indemnification involves shifting entire loss between/among tortfeasors.
• Indemnity is available:
  (1) In vicarious liability situations
  (2) Under strict products liability for the non-manufacturer

Question 33

Tip:

Answer 33

To keep contribution and indemnity separate in your mind, recall that, for contribution to apply,
generally both Ds must have a measurable degree of culpability for the tort; on the other hand, indemnity usually applies when paying D is much less responsible than nonpaying D or is
liable only vicariously b/c of their relationship w/ nonpaying D

Question 34

Comparative Contribution

Answer 34

• As noted above, most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various Ds.
• This approach also replaces indemnification rules based on identifiable differences in degree of fault.

Question 35

Loss of Consortium & Tortious Interferences with Family Relationships: Between Spouses

Answer 35

• Either spouse may bring an action for indirect interference w/ consortium & services caused by D’s intentional/negligent tortious conduct against other spouse

Question 36

LOC: Parent-Child

Answer 36

• A parent may maintain an action for loss of a child’s services & consortium as result of D’s tortious conduct, whether intentional/negligent.
• A child, however, has no action in most states against one who tortiously injures their parent.

Question 37

LOC: Nature of Action

Answer 37

• Actions for interference w/ family relationships are derivative.
• Hence, any defense that would reduce/bar recovery by injured family member also reduces/bars recovery for interference w/ family relationship.

Question 38

Survival of Tort Actions

Answer 38

• Survival acts allows COA to survive death of one/ more of the parties.
• Acts apply to actions involving torts to property & in personal injury.
• However, torts invading intangible personal interests (ex. defamation, invasion of right of privacy,
  malicious prosecution) expire upon vict’s death.

Question 39

Wrongful Death

Answer 39

• Wrongful death acts grant recovery for pecuniary injury resulting to spouse & next of kin.
• Decedent’s creditors have no claim against amount awarded.
• Recovery is allowed only to extent that deceased could have recovered in an action had they lived.
• Hence, decedent’s contributory negligence reduces wrongful death recovery in comparative negligence states.
• Similarly, a potential beneficiary’s contributory negligence reduces their share of recovery in comparative negligence states.

Question 40

Intra- Family Tort Immunities

Answer 40

• CL: one member of a family unit could not sue another in tort for personal injury.
• Today: most states have abolished spousal immunity.
• A slight majority have also abolished parent-child immunity (but generally do not allow children to sue merely for negligent supervision).
• Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct, or (2) automobile accident cases to the extent of insurance coverage.

Question 41

Governmental Tort Immunity

Answer 41

In varying degrees, federal, state, and municipal tort
immunity has been eliminated. Where it survives, immunity attaches to governmental, not proprietary, functions.

Question 42

Federal Government Immunity

Answer 42

• Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts.
• However, immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process,
  (7) libel & slander, (8) misrepresentation & deceit, and (9) interference w/ contract rights.
• Immunity is also not waived for acts that are characterized as “discretionary” (those involving considerations of political/economic policy, usually made by senior officials); acts termed “ministerial” (those performed at operational level of gov) are not immune from liability.

Question 43

State Governments Immunity

Answer 43

-Most states have substantially waived their immunity to the same extent as the federal government; hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.

Question 44

Local Government Immunity

Answer 44

• About 1/2 of states have abolished municipal immunity to same extent as for state gov.
• Where municipal immunity has been abolished, “public duty” rule provides: duty owed to the public at large is not owed to any particular citizen absent a special relationship between governmental body & citizen.
• Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, b/c the provision of fire protection services is a public duty.
• Where municipal immunity still exists, contrast “governmental” functions (functions that could only be performed adequately by the gov) & “proprietary” functions (functions that might as well have been provided by a private corp).
• Cts limit application of sovereign immunity by not
  granting it for proprietary functions.

Question 45

Immunity of Public Officials

Answer 45

• Public officials carrying out official duties are immune from tort liability for discretionary acts done w/o malice/improper purpose.
• Liability attaches, however, for ministerial acts.

Question 46

Charitable Immunity

Answer 46

• The majority of jurisdictions have eliminated charitable immunity