Flashcards in Page 26 Deck (31):
If One defendant can't pay in a several liability situation, what happens?
The plaintiff suffers the loss, but some jurisdictions allow reallocation so the unpaid portion is reallocated between the other defendants
What is indemnification?
Total reimbursement from another tortfeasor when the defendant was only technically liable, and the other was far more culpable
Essentially indemnification does what?
Completely shifts the defendant's liability to the other tortfeasor
When do you Most often see indemnification?
In respondent superior situations (like where a retailer was held liable for defective products sold by many manufacturer)
Why is indemnification not usually necessary anymore?
Because comparative fault is so widely used
Under indemnification, how can the defendant recover from other defendants?
If their conduct with more wrongful than his
What is the jurisdictional view of indemnification that involves both active and passive wrong doing?
Active wrongdoers are more wrongful than passive wrongdoers
What is an example For indemnification where an active wrongdoer would be more culpable than a passive one?
Manufacturer that makes a defective product would be more wrongful been a retailer that sold the product without discovering the defect
What is respondeat superior?
Employers are liable for the actions of their employees with in the scope of their employment regardless of whether they were committed in the employer's presence or not
What Does it mean for an action that is committed within the scope of one's employment?
Something so closely connected with what the employee was hired to do and fairly and reasonably incidental to it that the employee is thought of as carrying out the objectives of the employment
Who can be held vicariously responsible for one another's torts?
Partners and people acting in joint enterprises that are acting in furtherance of the partnership
If an act is incidental to the employment relationship, like going to the bathroom while at work, is that within the scope of the employment?
Are intentional torts committed by an employee while at work within the scope of employment to be considered for respondent superior?
Usually no, but if an employee uses force to further the employer's purpose, that can result in vicarious responsibility
What are some things that would be considered Outside the scope of employment for respondeat superior?
Commuting to and from work
When would an employer be responsible for his employee's torts if they come from duties that involve the use of physical force on others for the job?
Bodyguards or debt collectors
If a company has rules that forbid certain conduct, and employee does that thing, resulting respondeat superior liability, can that mean the employable escapes responsibility?
Can an Employer be liable for respondeat superior or when their employee is immune?
Yes, but it first has to be shown the employee was acting tortiously
If you are a delivery person on route, and you stop at a drugstore to get drugs for your child, is that within the scope of the employment enough to make your employee responsible?
Probably, but if you go out of your way and have an accident, probably not
What is liability if an independent contractor is involved?
Defendant is not liable for torts by independent contractors he employees, because he has no right to control that person's activity
Exception to the independent contractor rule?
Defendant can be vicariously liable if the contractor:
- undertakes duties isn't legally allowed to do
- engages in inherently dangerous activities
- D is an owner/occupier and contractor injures defendant's business invitee
- D gives contractor authority to act for him and plaintiff reasonably believes contractor is an employee/agent of the employer
If you contract out work that involves a high risk of harm to the public, and it isn't performed carefully, what is the liability?
The employer can be liable because he engaged in an independent person to do the job
If you have a contractor overhaul your airplane engine, and he doesn't do it right, who is liable?
You are because of how serious the risk is
Where does liability lie for issues involving separate injuries?
If the plaintiff negligently crashes into a tree and is injured, then the doctor paralyzes her, he is liable only for the enhancement of the injury, not the initial injury itself
When are partners and joint venturers vicariously liable for each other's torts?
If they were committed in the course and scope of the partnership/venture
What is a partnership?
Legal relationship formed by an agreement between two or more people to operate a business for profit
What is a joint venture?
Partnership of limited scope and duration that is present when two or more people engage in concerted activity with the mutual right to control for a common purpose
What is the split about automobile trip liability?
- some courts: it is joint enterprise when a rider and driver share expenses of a trip and take turns driving
- others: it is not joint enterprise unless a business purpose was involved
If two people are sharing expenses of a trip and taking turns driving, and there is an accident, and it is considered a joint enterprise, where does liability lie?
with either party, regardless of who was driving
What are the different situations that vicarious liability would apply to?
Autos and drivers, parent-child, tavern keepers, employer-employee
What are the two different views on vicarious liability for vehicles and drivers?
- Traditionally: an owner of a vehicle is not vicariously liable for someone's act that is driving his car with his permission
- modern: liability is imposed when a person driving is a member of the owner's family/household, and sometimes when the person drives the car with the owner's permission