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Vicarious Liability
Torts II - Vicarious Liability
| Question | Answer |
|---|---|
| Vicarious Liability | Negligence of one person is imputed to another person based on the relationship between them |
| Vicarious Liability Special Relationships | Employer/Employee, Employer/Independent Contractor, Joint Enterprises, Bailments |
| VL - Analytical Approach | 1. Is tortfeasor an employee (EE) or Independent Contractor (IC)? 2. EE - was he acting within scope of employment? IC - exceptions (nondelegable, inherently dangerous activities)? |
| VL Rules | EE - Generally, ER is liable for torts of an EE when committed within scope of employment IC - Generally, ER NOT liable for torts of an IC (subject to exceptions) |
| VL - Tortfeasor's status, EE/IC | Right of control test. More control over performance, more likely tortfeasor will be considered EE |
| VL - Factors for determining EE/IC status | 1. Control 2. Similarity of occupation or business 3. Supervision 4. Skill 5. Tools and place of work 6. Duration 7. Payment method 8. Understanding of the parties |
| VL - Scope of Employment | * While performing services for ER * While engaged in personal acts incidental to employment (comfort/welfare) * While participating in dual acts |
| VL - Going and Coming Rule | * EE generally outside scope of work while commuting to and from work * EXCEPTION: foreseeable dangers "arising from or related to" work |
| VL - Frolic and Detour Rule | * EE generally outside scope - frolic * EE within scope if merely on detour |
| VL - Frolic v. Detour | * Personal acts far removed in time, distance, purpose, expectations = frolics * Personal acts closely related in time, distance, purpose, and expectations = mere detours |
| VL - Scope of Employment, Approaches for determining within scope | * Engaged in ER work, or personal conduct incidental to work (including dual acts) * Foreseeable dangers related to or arising from employment * Mere Detour (v. Frolics) * ER Right of Control * Furtherance of ER Purpose * Character of the tortious a |
| VL - ICs & Nondelegable Duties | * Nondelegable duty exists for motorist's safe maintenance of cars * Motorist can be VL for mechanic/IC torts for unsafe car maintenance |
| IC - Nondelegable Duty, Exception examples | * Car owner's duty, safely maintain brakes * General contractor's duty to construct buildings safely * Landowner's duty to maintain property in reasonably safe condition * Hospital's duty to provide emergency care |
| IC - General Rule/Major Exceptions | Generally, ERs NOT liable for torts of ICs EXCEPTIONS: Nondelegable duties, Inherently Dangerous Activities |
| VL - IC - Inherently Dangerous Activity, exception examples | Crop dusting, poisonous chemicals Transporting giant logs on a highway Painting lines in middle of road Unloading propane gas at filling station |
| IC - Inherently Dangerous Activity Exception | ER may be VL for negligence of IC engaged in inherently dangerous activities. EXCEPTION TO EXCEPTION: Collateral negligence - ER NOT VL for CL of IC engaged in IDA. |
| IC - Collateral Negligence | Risk-creating conduct unrelated to the inherent danger of activity |
| VL - Joint Enterprises, General Rule | VL may be imposed on those engaged in joint enterprise |
| VL - Joint Enterprise (JE) Test | Agreement Common Goal Pecuniary Purpose Equal Right to Control |
| VL - Bailments, General Rule/Exceptions | Generally, bailors NOT VL for acts of bailees EXCEPTION: Bailor/passenger, Family Purpose Doctrine, automobile consent statutes |
| VL - Family Car Doctrine | VL: owner/furnisher of car (bailor) for negligent operation by household member driving with consent (bailee, close family member) |
Created by:
PrGrd
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