Vicarious Liability Flashcards
What is Vicarious Liability?
A Party is held liable for a tort committed by another
Liability of the party is NOT based on whether the party was at fault
Respondeat Superior
Employer is vicariously liable for torts committed by employees acting within the scope of their employment
The employer is liable even if without fault
Two Theories underlying Respondeat Superior
Control Theory
Enterprise Theory
What is Control Theory?
Liability based on the employer’s right to control and direct the activities of the employee
Focuses on what the employee was doing at the time of the negligent conduct - ask? Was the activity within the scope of employment?
What is Enterprise Theory?
Liability based on the benefit to the employer’s enterprise provided by the employee’s conduct
Focuses on the purpose of the employee’s actions - ask? Were they, at least in part, to further some legitimate purpose or motive of the employer’s business?
Who is an employee?
A person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control
Employee vs. Independent Contractor - what are the Restatement of Agency Factors?
- Right of control
- Distinct occupation or business
- Work done by unsupervised specialist or supervised employee
- Skill required
- Who supplies the instrumentalities, tools, and the place of work
- Length of time person is employed
- Method of payment
- Whether the work is a part of the employer’s regular business
- Whether the parties believe they are creating the relation of employee and employer
- Whether the principal is in business
What are the exceptions to the going and coming rule
Special hazards
Compensation for time and travel
Dual purpose
What is a frolic?
This is when the employee departs from the course and scope of employment to a significant degree in pursuit of the employee’s own interests
The employee is not within scope of employment and no vicarious liability
What is a detour?
A less serious deviation from the course and scope of employment
The employee is within scope of employment and there is potential vicarious liability
When is a frolic over?
A frolic is over when the employee’s own business is completed and the employee returns to the business of the employer
Usually the employee is not back within the scope of employment until actually back on the authorized route
When is an employer vicariously liable for an intentional tort?
When the conduct of a servant is within the scope of employment if but only if:
If force is intentionally used by the servant against another, the use of force is not unexpectable by the master
When is the conduct of a servant not within the scope of employment?
- When it is different in kind from that authorized
- Far beyond the authorized time or space limits
- Too little actuated by a purpose to serve the master
When can punitive damages can be awarded against a principal?
a) The principal or a managerial agent authorized the doing and the manner of the act, or
b) The agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
c) The agent was employed in a managerial capacity and was acting in the scope of employment, or
d) The principal or a managerial agent of the principal ratified or approved the act
What is the general rule about independent contractors and the principal?
A Principal is not vicariously liable for torts of independent contractors
