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Vicarious Liability

Torts II - Vicarious Liability

QuestionAnswer
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