Vicarious Liability & Other Miscellaneous Considerations Flashcards
Vicarious Liability
- One person (active tortfeasor) commits tortious act against 3rd party & another person (passive tortfeasor) will be liable to 3rd party for act.
VL: Employer-Employee
- 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.”
EE: Frolic & Detour
- 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.
EE: Intentional Torts
- 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)
EE: Liability for Own Negligence
- Employers may be liable for their own negligence by negligently selecting/ supervising their employees. (not vicarious liability.)
Independent Contractor Situations
- 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)
IC: Liability for Own Negligence
- 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.)
Partners & Joint Venturers
- 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.
Automobile Owner for Driver
- Automobile owner is not vicariously liable for tortious conduct of another person driving their automobile.
AOD: Family Car Doctrine
- In many states, owner is liable for tortious conduct of immediate family/household members who are driving w/ owner’s express/implied permission.
AOD: Permissive Use
- 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
AOD: Liability for Own Negligence - Negligent Entrustment
- 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.)
AOD: Driver Acting as Agent for Owner
- Car owner will be liable if driver is acting as owner’s agent, for instance using car to perform an errand for owner.
Bailor for Bailee
- Bailor is not vicariously liable for tortious conduct of their bailee.
BB: Negligent Entrustment
- Bailor may be liable for their own negligence in entrusting bailed object. (This is not vicarious liability.)
Parent for Child
- 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).
PC: Child Acting as Agent for Parents
- Cts may impose vicarious liability if child committed tort while acting as agent for parents
PC: Parent Liable for Own Negligence
- 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).
Tavernkeepers
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.
Tip:
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.
Multiple D Issues: Joint & Several Liability
- 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.
JSL: Defendants Acting in Concert
- 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.
JSL: Statutory Limitations
- 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.
Satisfaction
- 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.
Release
- In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.
Tip:
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.
Contribution
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.
Methods of Apportionment: Comparative Contribution
Comparative contribution system; contribution is imposed in proportion to relative fault of various Ds.
.
.
MOA: Contribution Tortfeasor Must Have Liability
- 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.
MOA: Not Applicable to Intentional Torts
- Contribution is not allowed among intentional tortfeasors.
Indemnification
- 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
Tip:
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
Comparative Contribution
- 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.
Loss of Consortium & Tortious Interferences with Family Relationships: Between Spouses
- Either spouse may bring an action for indirect interference w/ consortium & services caused by D’s intentional/negligent tortious conduct against other spouse
LOC: Parent-Child
- 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.
LOC: Nature of Action
- 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.
Survival of Tort Actions
- 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.
Wrongful Death
- 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.
Intra- Family Tort Immunities
- 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.
Governmental Tort Immunity
In varying degrees, federal, state, and municipal tort
immunity has been eliminated. Where it survives, immunity attaches to governmental, not proprietary, functions.
Federal Government Immunity
- 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.
State Governments Immunity
-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.
Local Government Immunity
- 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.
Immunity of Public Officials
- 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.
Charitable Immunity
- The majority of jurisdictions have eliminated charitable immunity
