vicarious liability and other misc. considerations Flashcards
(41 cards)
vicarious liability generally
one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act
An employer will be vicariously liable for tortious acts committed by their employee if
An employer will be vicariously liable for tortious acts committed by their employee if
vicarious liability - when an employee frolics/detours
An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable.
are employees vicariously liable for intentional tortious conduct of employees?
It is usually held that intentional tortious conduct by employees is not within the scope of employment.
Exceptions:
- employee is furthering the business of the employer (ex. removing customers from the premises because they are rowdy)
- Force is authorized in the employment (ex. bouncer)
- Friction is generated by the employment (ex. bill collector)
when employers are liable for own negligence
Employers may be liable for their own negligence by negligently selecting or supervising their employees.
*This is not vicarious liability!
when hiring party is vicariously liable for tortious acts of independent contractor:
Generally, principal NOT vicariously liable for tortious acts of agent when hiring party does not control the manner and method in which the independent contractor performs the job.
*public policy exceptions - ex. where a duty is simply nondelegable, such as the duty of a business to keep its premises safe for customers.
when principal is liable for own negligence in hiring independent contractor
principal may be liable for own negligence in selecting or supervising the independent contractor (ex. hospital may be liable for contracting with an unqualified and incompetent health care provider who negligently treats the hospital’s patient)
*This is not vicarious liability!
when partners and joint ventures are vicariously liable for each other
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture
when automobile owner is vicariously liable for driver (general rule)
general rule is that an automobile owner is NOT vicariously liable for the tortious conduct of another person driving their automobile.
SOME jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances.
when automobile owner is vicariously liable for driver (family car doctrine)
many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.
when automobile owner is vicariously liable for driver (permissive use)
number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent.
However, under a federal statute, rental car companies are not vicariously liable for the negligent accidents of their customers even if they do business in a “permissive use” state.
when automobile owner is liable for negligent entrustment
owner MAY be liable for their own negligence in entrusting the car to a driver.
Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so.
*This is not vicarious liability!
when automobile owner is liable for driver acting as agent
The car owner will be liable if the driver is acting as the owner’s agent, for instance using the car to perform an errand for the owner.
when bailor is vicariously liable for bailee - general rule
general rule - the bailor is not vicariously liable for the tortious conduct of their bailee.
when bailor is liable for negligent entrustment
bailor may be liable for their own negligence in entrusting the bailed object.
*this is not vicarious liability!
when is a parent vicariously responsible for their child (general rules)
common law - parent is NOT vicariously liable for the tortious conduct of their child
MOST states - by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount
when is a parent vicariously responsible for their child as agent for parents
Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.
when is a parent responsible for their own negligence
may be held liable for their own negligence in allowing the child to do something
if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, they may be liable for not using due care in exercising control to mitigate such conduct
vicarious liability of tavernkeepers for torts of drunk patrons
common law - no liability
modern law (many states) - Dramshop Acts: create a cause of action in favor of any third person injured by the intoxicated patron
*Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. **based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.
joint and several liability - traditional common law rule
when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable
If the injury is divisible, each defendant is liable only for the identifiable portion.
joint and several liability - Ds acting in concert
When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.
statutory limitations on joint and several liability
Many states have abolished joint liability in cases based on fault either
(1) for those defendants judged to be less at fault than the plaintiff, or
(2) for all defendants regarding noneconomic damages.
In these cases, liability will be proportional to the defendant’s fault.
satisfaction in cases with multiple Ds
Recovery of full payment is a “satisfaction.” Only one satisfaction is allowed, so a plaintiff cannot pursue other defendants in the case once their damage claims have been fully paid. Until there is satisfaction, however, one may proceed against all jointly liable parties.
