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Flashcards in Vicarious Liability / Joint Enterprise / Bailments Deck (34)
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Definition of vicarious liability

when one person is made liable for the torts of another.

If an employee commits a tort during the scope of employment, his employer will be liable


Respondeat superior

look to the person higher up


What is the most difficult question for vicarious liability?

Determining if the EE was acting in the scope of their employment


Scope of employment test

the tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer's business purpose, even if the means he chose were indirect, unwise, and perhaps even forbidden


going-and-coming rule

ER is not liable for EE's actions during their commute to and from work; however, if ER creates a extra risk to the public that manifests itself during the EE's commute, they are liable


What if an employee makes a slight deviation from their work duties, is employer still liable under vicarious liability?

Yes - as long as the deviation is slight

6 factors to determine if deviation is slight:

1 - EE's intent
2 - Nature, time, and place of deviation
3 - Time consumed in the deviation
4 - Work for which the employee was hired
5 - The incidental acts reasonably expected by the employer
6 - How much freedom was allowed the employee in performing his job responsibilities

(jury decides this)


definition of frolic

the pursuit of the employee's personal business as a substantial deviation or abandonment of the employment


definition of detour

deviation that is sufficiently related to the employment to fall within its scope


Independent contractor and vicarious liability

ER or party that hires an independent contractor is generally not liable for their torts


Test to determine if an employee is an independent contractor

does ER control physical details of the independent contractor's work?


Hospital and vicarious liability

Hospitals cannot be vicariously liable for the negligence of their doctors because doctors have the discretion to do things on their own


Exception to independent contractor rule?

non-delegable duty

When the work involves a peculiar risk of physical injury or property damage


definition of joint enterprise

like a partnership, except it is generally for a short and specific purpose


Elements of joint enterprise

1 - agreement - express or implied between the members of a group
2 - a common purpose to be carried out by the group
3 - a common pecuniary interest (financial interest) in that purpose
4 - an equal right to a voice in the enterprise


Liability and Bailments

relationship between a bailor + bailee can make bailor liable for acts of bailee


Definition of bailor

someone who has title ownership of property


definition of bailee

someone else who is trusted with the property (usually younger, usually not a deep pocket)


"family purpose" doctrine

a car owner who lets members of his household drive his car for their own personal use has done so in order to further a "family purpose" or family objective and is vicariously liable


definition of strict liability

those who engage in certain kinds of activities do so at their own peril and must pay for any damage that foreseeably results, even if the activity has been carrier out in the most careful possible manner


Strict liability and wild animals

strict liability for any kind of damage that results from a dangerous propensity of that species


Strict liability and domestic animals

only strict liability where the owner knows or has reason to know of the particular animal's dangerous characteristics


"one bite" rule

every dog is NOT entitled to one free bite because an owner may have reason to know of his pet's dangerous tendencies due to prior unsuccessful attempts to bite someone or due to its vicious temperament


Are firearms abnormally dangerous?

NO - there are steps D can take to mitigate the danger of firearms


6 factors to determine if activity is abnormally dangerous

1 - existence of a high degree of risk of some harm to the person, land, or chattels of others
2 - likelihood that the harm that results from it will be great
3 - inability to eliminate the risk by the exercise of reasonable care
4 - extend to which the activity is not a matter of common usage
5 - extent to which its value to the community is outweighed by its dangerous attributes
6 - inappropriateness of the activity is not a matter of common usage


Products Liability is an umbrella term for?

umbrella term for the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm caused by the chattel


Definition of express warranty

a seller may expressly represent that her goods have certain qualities


Definition of implied warranty

the existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the good for sale


Restatement's view on strict tort liability for defective products

1 - one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

The seller is engaged in the business of selling such a product, AND|

It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

2 - The rule stated in Subsection (1) applies although:
1 - The seller has exercised all possible care in the preparation and sale of his product
2 - The user or consumer has not bought the product from or entered into any contractual relation with the seller


Ads and brochures - product liability

representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer, may be relied on by the buyer regardless of an absence of privity of contract


Manufacturer puts a product on the market that they know will not be inspected - products liability

liable if the product proves to have a defect that causes injury to a human being