Torts II - Vicarious Liability
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| Vicarious Liability | Negligence of one person is imputed to another person based on the relationship between them
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| Vicarious Liability Special Relationships | Employer/Employee, Employer/Independent Contractor, Joint Enterprises, Bailments
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| 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)?
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| 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)
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| VL - Tortfeasor's status, EE/IC | Right of control test. More control over performance, more likely tortfeasor will be considered EE
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| 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
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| VL - Scope of Employment | * While performing services for ER
* While engaged in personal acts incidental to employment (comfort/welfare)
* While participating in dual acts
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| 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
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| VL - Frolic and Detour Rule | * EE generally outside scope - frolic
* EE within scope if merely on detour
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| 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
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| 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
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| 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
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| 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
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| IC - General Rule/Major Exceptions | Generally, ERs NOT liable for torts of ICs
EXCEPTIONS: Nondelegable duties, Inherently Dangerous Activities
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| 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
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| 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.
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| IC - Collateral Negligence | Risk-creating conduct unrelated to the inherent danger of activity
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| VL - Joint Enterprises, General Rule | VL may be imposed on those engaged in joint enterprise
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| VL - Joint Enterprise (JE) Test | Agreement
Common Goal
Pecuniary Purpose
Equal Right to Control
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| VL - Bailments, General Rule/Exceptions | Generally, bailors NOT VL for acts of bailees
EXCEPTION: Bailor/passenger, Family Purpose Doctrine, automobile consent statutes
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| VL - Family Car Doctrine | VL: owner/furnisher of car (bailor) for negligent operation by household member driving with consent (bailee, close family member)
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