Vicarious Tort Liability Flashcards
Master’s Liability
A master is subject to liability for the torts of his servants committed while acting within the scope of their employment.
Servant (Definition)
A servant is an agent employed by a master to perform services in his affairs whose physical conduct in the performance of the service is subject to the right of control by the master
Necessity of Employer/Employee Situation
It is not necessary; a gratuitous act can trigger tort liability.
Drivers and Passengers Liability
The negligence of the driver is not imputable to a passenger except:
(1) where the driver is the servant or agent of the passenger;
(2) where the driver and passenger are engaged in a joint enterprise;
(3) where the passenger assumes to direct operation of the automobile and to exercise control over it.
Independent Contractor Exception
Vicarious tort liability is not triggered for independent contractors, except where:
(1) the activity is inherently dangerous;
(2) it is in regards to non-delegable duties
Determination of an Independent Contractor
In determining whether one acting for another is a servant or an independent contractor, the following matters of fact are considered:
(1) the extent of control which, by the agreement, the master may exercise over the details of the work;
(2) whether or not the one employed is engaged in a distinct occupation or business;
(3) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision
(4) the skill required by the occupation (the more specialized, the more likely an IC)
(5) whether the employer or worker supplies tools
(6) the length of time person is employed
(7) the method of payment (time or job)
Borrowed Servant Tests
(1) Furthering of Business: As long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation.
(2) Spot-Control: See which principal was on the spot in detailed control over the servant at the moment of the injury
(3) General Control Test: Determine whether the agent can be substituted for another servant at any time, that the time of the borrowed employment is short, and that the lent servant has the skill of a specialist.
Re-Entry from Frolic (Test for Re-entry)
When the dominant purpose is that of the master’s business.
RUPA: A servant does not re-enter the scope of employment until he is again reasonably near the authorized space and time limits.
Master’s Liability When Beyond Scope of Employment
A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(1) the master intended the conduct or the consequences, or
(2) the master was negligent or reckless, or
(3) the conduct violated a non-delegable duty of the master, or
(4) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
Master’s Liability for Negligent Acts Within Scope of Employment
An employee’s conduct must be of the general kind the employee is employed to perform. In other words, the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.
The employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Master’s Liability for Intentional Torts
Foreseeability Test: Generally not liable, but the employer should be liable for foreseeable risks characteristically associated with this type of activity.
Crimes: The employer can be civilly liable for wrongful act that is a crime, but not criminally liable without intent.
Implied contract Theory: Duty for common carriers include various liability for the torts of employees visited upon a passenger while the contract for transport is being accomplished.
