torts 2 deck 4 Flashcards
vicarious liability
Was employee’s conduct “unforeseeable”?
The basis for respondeat superior
A “business enterprise cannot justly disclaim responsibility
for accidents
which may fairly be said to be characteristic of its activities.”
intentional torts
Kephart v. Genuity, Inc. (Cal. App. 2006), note 4, p. 655
Road rage
Incident too far removed by time from any requirement of defendant’s business—
“the jury reasonably could find that [the employee] left his home at least five hours earlier than was required by his business trip and that, as he testified, he did so entirely for personal reasons.”
punitive damages
Lake Shore & Michigan Southern Ry. v. Prentice (US 1893), note 5, p. 655
Can an employer be charged with punitive damages for the illegal, wanton and oppressive conduct of one of its employees?
No
borrowed servant rule
employer with right of control
indemnification
Can the employer sue the employee for money paid to the third party?
YES
independent contractor or employee?
The economic reality of the plaintiffs’ relationship with the company.
The answer:
The plaintiffs “independently determined”
(1) the manner and extent of their affiliation with the company
(2) whether to work exclusively for the company accounts or proive rides for other clients and/or develop business of their own
(3) the degree to which they would invest in their driving businesses
(4) when, where, and how to provide rides for the company’s clients.
the ABC test
(a) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(b) The person performs work that is outside the usual course of the hiring entity’s business.
(c) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
implied authority
The “cardinal consideration”
Whether the alleged agent retains the right to control the manner of doing the work.
Factors a court may consider include:
Who decides what procedures?
Who decides what to pay?
What about a physician’s exercise of medical judgment?
