Strict liability/vicarious liability

Question 1

Animals (common law strict liability)

Answer 1

Trespassing barnyard beasts
• Owner of livestock that trespass are liable for harm to land or person (Exception is if the economic needs of the community come into play)

Unusually dangerous animals
•Animals w/ dangerous tendencies abnormal to the animals category
•Owner has to know or should have known

Wild animals
•Owners of wild animals are strictly liable for damage caused by their animal
•However, this rule applies only where damages result from the type of risk that made the animal dangerous in the first place

Question 2

Abnormally dangerous activities (common law strict liability)

Answer 2

Foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors;
AND activity is not one of common usage (E.g. blasting, fireworks, poison, crop-dusting, hazardous wastes, explosives, etc.)
- Plaintiff cant be a part of the activity- has to be uninvolved and innocent
- Subjacent and lateral support of your property is entitled to strict liability
- Still must prove proximate cause- harm must be within scope of the risk

Question 3

In strict liability, what do you need to establish? or not?

Answer 3

• Don’t need to establish duty or breach
• must prove prox. cause
• scope of risk that made strict liability apply

Question 4

Vicarious liability (respondeat superior)

Answer 4

•The master is liable for torts that the servant committed within the course and scope of the servant’s employment- ask whether they are furthering a business purpose?
o Strict liability b/c the employer’s fault is irrelevant
• This doesn’t relieve the servant, just adds the employer to the liability

Question 5

Policy reasons for vicarious liability

Answer 5

• Policy reasons for respondeat superior:
o Prevention of Future Injuries
o Assuring Compensation
o Equitably Distributing Losses Caused by an Enterprise

Question 6

First requirement of vicarious liability/ coming & going rule

Answer 6

1. Must be within course of employment
   o I.e. Has the job started and not ended given time, place, and circumstance?

Coming and Going Rule
- The employee is not acting within the course of his employment when coming or going to work from home.
- Exception: if there is an incidental benefit to the employer not common to commute trips by ordinary members of the work force, then the commute is within the course of employment
-Other exceptions:
• Special hazard exception
• Despite a blizzard and difficult road conditions, employee is called into work.
• Dual purpose doctrine
• Worker is considered on the job if, in addition to simply driving to or from work, she is performing a work-related task.

Question 7

second requirement of vicarious liability & frolic and detour rule

Answer 7

2. Must be within scope of employment (i.e. arising out of employment)
   o Factors to consider: whether the conduct is of the kind that the employee is authorized to perform and whether the act occurs substantially within authorized time and space restrictions
   o Minor deviations from a job are usually in the scope

Question 8

Respondeat Superior for Intentional Torts (usually not liable

Answer 8

An intentional tort will be within the scope of employment if either

• the conduct is required by or incidental to the employee’s duties, OR
• is reasonably foreseeable in light of the employer’s business.
• If an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee’s actions

Question 9

Borrowed servant doctrine

Answer 9

The first master is presumptively vicariously liable for the torts of the borrowed servant, but control tends to be the key.
I.e. Who was directing the servant?
o Not all servants are paid (E.g. volunteers at a church fundraiser)

Question 10

independent contractor

Answer 10

Employers are not vicariously liable for the torts of an independent contractor
Again, control can be a factor in determining liability
I.e. were they really acting as an independent contractor or was their behavior that of an employee
Other factors to consider:
• Extent of control the master may exercise over details of the work
• Whether one employed is engaged in distinct business or occupation
• Who supplies tools and instrumentalities
• Length of time person is employed
• Method of payment- time v. job
• Whether the work is part of the regular business of the employer
Exceptions:
- An employer may be liable for the torts of the independent contractor if the duty is nondelegable
- Inherently dangerous activities – something so risky we want to make sure there is a second person liable
- Knowingly hiring an incompetent contractor

Question 11

Defenses to strict liability?

Answer 11

2nd restatement:
Assumption of the risk = yes
Contributory negligence = no

3rd restatement
Comparative fault = yes
This normally wouldn’t happen anyway bc plaintiffs should be uninvolved and innocent in the strict liability world anyway

Question 12

Frolic and Detour Rule

Answer 12

Employer is responsible for detours, not frolics
• Frolic- “personal missions” – employer is NOT liable
• Detour- “trivial departures” – the employer IS liable
Employees’ intent (serving the master?)
• Extent of deviation
• When do they re-enter employment? (i.e. returning to scope of employment after a frolic) re-entering is a highly factual determination
• KEY question: Had employee renewed intent to act for employer?
• Look at time and space