VICARIOUS LIABILITY, ETC.

Question 1

vicarious liability

Answer 1

D (e.g., employer) is liable for tort of another (e.g., employee) based on the relationship b/w D and tortfeasor

*even if the related party is not vicariously liable… they can be liable for their OWN NEGLIGENCE (e.g., parent can be liable for negligent supervision of child)

Question 2

employer-employee

Answer 2

• an employer will be vicariously liable for tortious acts committed by their employee IF the tortious act occurs within scope of employment relationship

Question 3

intentional torts and employer-employee

Answer 3

intentional tortious conduct by employees is generally not within scope of employment

exceptions (these torts are WITHIN SCOPE of employment and thus employers can be vicariously liable):

1. employee is furthering business of employer (breaking up a fight in a store)
2. force is permitted in the employment (bouncer)
3. entails creating friction (bail bondsman)

Question 4

liability for own negligence

Answer 4

employers may be liable for their own negligence by negligently selecting or supervising their employees (this is not vicarious liability)

Question 5

independent contractor situations

Answer 5

in general, hiring party (principal) won’t be vicariously liable for tortious acts of an independent contractor (agent)

exceptions (prinicpal is vicariously liable):
- independent contractor is engaged in inherently dangerous activity
- principals duty cannot be delegated b/c of public policy considerations (e.g., the duty of a business to keep its premises safe for customers)

Question 6

liability of own negligence (independent contractor situation)

Answer 6

employer may be liable for their own negligence in selecting or supervising independent contractor

Question 7

multiple D issues

Answer 7

• joint and several liability: when two or more negligent acts combine to proximately cause an indivisible injury, each D will be jointly and severally liable (liable to the pff for ENTIRE damage incurred)
• if injury is divisible, each D is liable only for identifiable portion (except when two or more D’s act in concert and injure the pff — each is jointly and severally liable for the entire injury)

e.g., biker was riding his bike when negligent driver struck bike and he hurt his right ankle; then another negligently driven taxicab struck him in his left leg. pff can recover from either driver or cabbie for injury to left leg (recover from driver only for injury to his right ankle).

pure comparative negligence (tells us whether pff can recover)
e.g., jury returns verdict saying 100k and pff is 40% at fault. she gets 60% of the damages.

joint and several liability—pff can go after any of the tortfeasors and recover entire amount

Question 8

satisfication and release

Answer 8

• satisfaction: recovery of full payment from one D is a satisfaction—she can’t recover more from a jointly liable D
• release: in most states, release of one tortfeasor doesn’t discharge other tortfeasors

Question 9

contribution and indemnity

Answer 9

doctrines that determine how joint tortfeasors ALLOCATE between them the damages they gotta pay to successful pff

Question 10

contribution

Answer 10

allows a D who pays more than their share of damages to have a claim against other JOINTLY liable parties for excess (apportions responsibility among those at fault)

methods of apportionment:
- COMPARATIVE CONTRIBUTION: contribution is imposed in proportion to relative fault of various D’s

***generally, both D’s must have a measurable degree of culpability for the tort

Question 11

indemnification (i.e., reimbursement)

Answer 11

• involves shifting the entire loss b/w or among tortfeasors
• available in vicarious liability situations and under strict products liability for the non-manufacturer

***usually applies when paying D is much less responsible than nonpaying D