Miscellaneous

Question 1

What is vicarious liability?

Answer 1

Victim of a tort (P) wants to sue someone (D) who had no actual role in producing the injury based on RELATIONSHIP with the tortfeasor

Question 2

What are the four important relationships w/r/t vicarious liability?

Answer 2

1. Employer-employee
2. Independent contractors
3. Owner-driver of a vehicle
4. Parent-child [parent NOT vicariously liable!]

Question 3

When will an employer be vicariously liable for the intentional torts of employees? (3 times)

Answer 3

1. Job involves D’s authorization to use force (e.g., bouncer)
2. Job involves friction (e.g., repo man)
3. Tort committed with objective of serving employer’s purposes

Question 4

When will someone be vicariously liable for an independent contractor?

Answer 4

A business owner and the contractor injures customers ON YOUR PROPERTY

Question 5

What is the NY RULE for scaffold liability?

Answer 5

Owner of the premises and the general contractor are liable to any worker injured because of scaffolding

There is no reduction in recovery for any fault of the worker

Question 6

When will owners of vehicles be vicariously liable for torts of drivers?

Answer 6

When the driver is on an errand for the owner

Question 7

When are parents vicariously liable for the torts of their children?

Answer 7

Never (But bring the claim against the kid, and against the parents for their own negligence!)

Question 8

What is the NY RULE on when owners of vehicles will be vicariously liable for torts of drivers?

Answer 8

NY is Permissive Use state: Owners of vehicles are vicariously liable for anyone driving the owner’s car with his permission

(There is a presumption that anybody driving the owner’s car is driving with the owner’s permission)

Question 9

What happens when there are co-defendants?

Answer 9

IF comparative contribution: each D get a percentage of fault, and P recovers from each D in accordance with that percentage

IF Ds are held jointly liable: P can recover fully from one D, who will have to seek contribution from the others

Question 10

What is indemnification?

Answer 10

D can recover his entire payment to P from other Ds if they are indemnified

(e.g., George is running an errand for Jerry and hits Elaine… George is liable to Elaine, but George can recover full damage amount from Jerry IF Jerry indemnified George)

Question 11

Who is indemnified?

Answer 11

1. If you are held vicariously liable, can recover from active tortfeasor
2. Retailers are indemnified by the manufacturer

Question 12

What is contribution?

Answer 12

D can recover partial amounts that he has paid to P from other defendants

Question 13

What is the NY RULE on tavern keeper’s liability for the torts of drunk patrons?

Answer 13

Dram Shop Provision: Vendors who have unlawfully supplied an intoxicated vendee with alcohol are liable to third parties injured by the intoxicated vendee

(Unlawfully supplied when: patron was visibly intoxicated OR patron was actually (SL) or apparently under the age of 21)

Question 14

What is a loss of consortium claim?

Answer 14

Claim by uninjured spouse against all the same defendants

(Derivative claim, so all the same defenses asserted against the original claim can also be asserted in the consortium claim)

Question 15

For which three “losses” may a spouse recover in a loss of consortium suit?

Answer 15

1. Loss of household services
2. Loss of society (companionship), AND
3. Loss of sex

Question 16

What is the general rule on employer liability for unintentional torts of employees?

Answer 16

Generally, employer not liable for unintentional torts of employees

Question 17

What does it mean that vicarious liability is a doctrine of last resort?

Answer 17

In a fact pattern with one of the vicarious liability relationships (Employer; Contractor; Car owner), always analyze first whether the tortfeasor himself can be held liable for his conduct

(e.g., Dave leaves a loaded gun on a table and his 9yo kid shoots it; no vicarious liability needed because Dave was negligent)