Vicarious Liability: Employers, Employees, and Scope of Employment - Feb. 27

Question 1

What is the first main branch of vicarious liability? (Feldman)

Answer 1

The first branch holds employers liable for the torts of their employees when those torts are committed within the scope of employment.

Question 2

What is the second main branch of vicarious liability? (Feldman)

Answer 2

The second branch governs the attribution of torts committed by independent contractors acting on behalf of their principals.

Question 3

Before vicarious liability doctrine kicks in, what must first be present? (Feldman)

Answer 3

For either branch of vicarious liability, there must be
an underlying tort committed by the employee or independent contractor before vicarious
liability doctrine even kicks in.

Question 4

What is the first step in the vicarious liability test? (Feldman)

Answer 4

The first step in analyzing a vicarious liability problem is to identify the underlying tort and determine liability. The doctrine applicable to that tort is the starting point for analysis.

Question 5

What is the second step in the vicarious liability test? (Feldman)

Answer 5

The second step in analyzing whether an
employer is liable for the tortious conduct of an employee is to apply the “scope of
employment” test.

Question 6

In determining scope of employment, what is the benefits test? (Feldman)

Answer 6

The “benefits” test asks: Did the employer stand to benefit from the conduct of the employee?

Question 7

In determining scope of employment, what is the substantial control test? (Feldman)

Answer 7

The “substantial control” test asks: Was the employer exercising substantial control over the employee’s actions at the time of the accident?

Question 8

In determining scope of employment, what is the in service of test? (Feldman)

Answer 8

The “in the service of” test asks: Was the employee’s conduct directly in the service of the employer at the time of the accident?

Question 9

In determining scope of employment, what is the motive test? (Feldman)

Answer 9

The “motive” test asks: Was that conduct motivated by a desire to confer a benefit on the employer?

Question 10

In determining scope of employment, what is the fairness test? (Feldman)

Answer 10

The “fairness” test asks: Is it fair (see explanation of “fairness” below) for the enterprise to disclaim the actions of its employees?

Question 11

To determine whether we should interpret “scope of employment” (and these tests for it) narrowly or broadly, what is the accident prevention justification? (Feldman)

Answer 11

Accident prevention calls for assigning liability to employers “to induce the employer to consider activity changes that might reduce the number of
accidents” (Konradi, p.775)

Question 12

To determine whether we should interpret “scope of employment” (and these tests for it) narrowly or broadly, what is the allocative efficiency justification? (Feldman)

Answer 12

Allocative efficiency calls for assigning liability to employers when they are in the best position (i.e., cheapest cost avoider) to make the choice between
imposing a risk and eliminating it.

Question 13

To determine whether we should interpret “scope of employment” (and these tests for it) narrowly or broadly, what is the loss-spreading justification? (Feldman)

Answer 13

Loss-spreading calls for assigning liability to employers when they are in the best position to insure against the class of accidents that includes this accident.

Question 14

To determine whether we should interpret “scope of employment” (and these tests for it) narrowly or broadly, what is the fairness justification? (Feldman)

Answer 14

Fairness calls for assigning liability to employers when doing so will make the enterprise that benefits from the risk bear its burden.

Question 15

What are the three elements of fairness? (Feldman)

Answer 15

1. benefiting (profiting) from the activity that imposes the risk (sailors unwinding);
2. benefiting (profiting) from not preventing the risk (saving the cost of precaution); and
3. responsibility for the “characteristic” or “foreseeable” risk of the employer’s ongoing activity: “’the harm likely to flow from [their] long-run activity in spite of all reasonable precautions on [their] part.” (p.780)

Question 16

Can intentional torts satisfy a scope of employments test? (Feldman)

Answer 16

A violent attack may fall within the scope of a perpetrator’s employment “if there is evidence that the assault grew out of a job-related controversy.” (Search)

Question 17

What is the critical question for enterprise liability? (Feldman)

Answer 17

The critical question for enterprise liability is not how egregious the conduct is, but how much the enterprise enables, encourages, or benefits from the conduct. See, e.g., Mary M. and Lisa M. squibs (pp.782-83).