Strict and Vicarious Liability

Question 1

Vicarious Liability

Answer 1

A legal rule that holds a person or company responsible for actions committed by others or by their employees. The employee must be acting within the scope of their employment.

Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment.

Question 2

Respondeat Superior

Answer 2

Employer responsible for negligence of employee

The employee must be acting within the scope of their employment

Question 3

Does RS include the daily commute?

Answer 3

Typicaly not, think of Brussard for the exception, where the commute rule did not apply because she inhaled the fumes that lead to the accident while at work

Question 4

Frolic

Answer 4

The pursuit of the employee’s personal business as a substantial deviation from or an abandonment of the employment.

If the employee wholly abandons, even temporarily, the employer’s business for personal reasons, the act is not within the scope of employment

Question 5

Detour

Answer 5

A deviation that is sufficiently related to employment so that it falls within its scope

Question 6

Factors to consider for frolic and detour

Answer 6

(1) the employee’s intent;
(2) the nature, time, and place of the deviation;
(3) the time consumed in the deviation;
(4) the work for which the employee was hired;
(5) the incidental acts reasonably expected by the employer; and
(6) the freedom allowed the employee in performing his job responsibilities.

Question 7

What about intentional torts within the scope of employment?

Answer 7

Generally, there is no liability to the employer for punitive damages when the underlying tort is intentional

Question 8

Are employers vicariously liable for negligence of independent contractors?

Answer 8

No, they have little to no control over an IC

Question 9

How to determine if an employee is an independent contractor

Answer 9

They do work on their own time, in their own way, and they are under almost no directions but their own, so that the one who selected the contractor has no control or right of control over the manner in which the work is done.

Remember: You cannot delegate certain duties to independent contractor and escape vicarious liability

Question 10

Apparent authority

Answer 10

One who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the latter’s negligent acts to the extent of that representation

This is true even when negligent party is an independent contractor

Question 11

Joint enterprise

Answer 11

Impose vicarious liability on person who is engaged in same activity with another person who commits tort

Question 12

Requirements of a joint enterprise

Answer 12

(1)an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3)community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Question 13

Strict Liability

Answer 13

Dft must pay damages although has neither acted intentionally nor failed to adhere to reasonable standard of care.

Question 14

Strict Liability with Animals applies to those who…

Answer 14

Keep, possess, or harbor them

Question 15

Trespassing animals (COMMON LAW)

Answer 15

Common Law: the owner of animals of a kind likely to roam and do damage is strictly liable for their trespasses.

This is limited to barnyard animals: cattle, horse, etc. (not dogs and cats)

Exception: animal strays from highway upon which lawfully driven; no SL as to person responsible for animal

Question 16

Strict Liability for Trespassing Animals in United States

Answer 16

The common law rule is unworkable since grazing on open ranges is common. Therefore we have fencing out statutes.

Question 17

Fencing out statutes

Answer 17

If plaintiff fenced land properly SL when animals broke through fence (for owners of animals who break through)

Question 18

Fencing In statute

Answer 18

owner of animals SL unless fences animals in to restrain them.

Question 19

Wild animals and SL

Answer 19

Under common law, owner/possessor of undomesticated wild animal brought to owners’ land SL for any injury animal causes.

Question 20

Domesticated Animals and SL

Answer 20

all but South Carolina follows CL rule, through which owner of domestic animal (cat, dog, sheep, horse) subject to SL if knew or had reason to know that animal had dangerous propensities. Proved by previous bite or other evidence (plays too rough).

Question 21

Abnormally dangerous activites

Answer 21

Typically, Strict liability is imposed on owners and users of land when they are storing something abnormally dangerous on their land

Remember to go through the factors because not everything is strict liability just because it is a dangerous weapon

Question 22

Factors to consider when determining of an action is abnormally dangerous

Answer 22

From the Restatement:

1. Existence of a high degree of risk of some harm to the person, land or chattels of others;
2. Likelihood that the harm that results from it will be great;
3. Inability to eliminate the risk by the exercise of reasonable care’
4. Extent to which the activity is not a matter of common usage; If it is common, there is no strict liability
5. Inappropriateness of the activity to the place where it is carried on; and
6. Extent to which its value to the community is outweighed by its dangerous attributes

Question 23

Limitations to SL

Answer 23

Law does not impose the rule of strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land (Foster mink case)

A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief it is escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. UNLESS, the injury results from “the act of God” which the owner had no reason to anticipate (Golden hydroelectric plant case)