Title: Vicarious Liability
1Vicarious Liability
- Or
- Where is the Deep Pocket?
2Catchin the Big Fish
- Establishing that Homer ran a red light will not
get you much - Homer has virtually no assets
- Has little or no insurance.
- Somehow, youve got to impose liability on Mr.
Burns for what he did. - Deep pockets
- Lots of insurance
3The Elements
- (1) There must be an ________- ______
relationship between the party who caused the
harm and the party against whom respondeat
superior is asserted and
- (2) The employees act that caused the harm must
have been within the ______ of employment.
4(1) Employer-Employee
- Employee
- Clearest example
- Works _____
- Compensated on a _______ basis
- Subject to ________ in the ______ of the work
- Principal controls the _______ and the ____ of
the work.
- Independent Contractor
- Clearest example
- Has a _____ of her own
- Hired to do __________
- Is paid per ___________
- Follows her own ________ in carrying out the job
- Principal has no right to control the ____ and
_____ in which the job is performed.
5Factors IC or E?
- Right to _____ is critical!
- If none, suggests IC
- If parties have K
- If it gives principal right to control, then
_________ - If it is silent on right to control, then ______
- How the parties ____________ relationship.
- Does that control?
- Does person have ________ business
- If so, suggests IC.
- Does principal or person supply ______ for job.
- If person, suggests IC
- Is term short or long/indefinite?
- If ____, suggests IC
- Does job furthers principals _____
- If not, suggests IC
6Liability for Subservants
- What if an employee hires someone to help him
out. - Homer hires Apu to help him run the reactor Apu
blows it up. - When can the employer of the employee be liable
for torts committed by the subservant? - Can a citizen
- A principal may only be liable for tort committed
by a duly ___________ subservant. - Did Burns authorize Homer to hire Apu?
- Put the other way, as a general rule, employer is
not _____ for torts of servant engaged _________
__________. - Stan hires Kyle to drive a truck. Without
permission from his boss, Kyle asks Cartman to
drive it as a favor. Cartman kills Kenny. - Is Stan liable?
7Authorized Subservants
- Express Authority
- If Burns authorized Homer to hire Apu, is Homer
Apus employer, or is Burns? - So, ______ may be liable for blowing up the
plant, not ___________.
- Implied Authority
- _____ practices can create implied authority.
- In an ______ situation where it is _______
necessary to hire a subservant to protect the
principals interest - If an employer directs the employee to _____, the
employee has implied authority to use ______
means to do so. - Burns hires Homer as an employee to patrol the
parking lot. Burns says nothing about whether
Homer can hire anyone, but he hires Apu. Is
Burns liable for Apus torts?
8Liability for Torts of Borrowed Employees
- Moe employs Barney to operate a snow plow, which
Moe owns. He loans the plow and Barney to Apu so
Apu can have Barney clear out the snow at the
Quickie Mart. Barney accidentally kills Kenny.
- In order to know whether Moe or Apu is
responsible for Barneys tort, the critical issue
is which one had the ______ to _________ Barneys
work. - Whoever has that right is Barneys employer.
9Employer by Estoppel
- Even if no actual e-e relationship an principal
can be estopped to deny that the person is an
employee. - The principal must _____ the appearance that an
e-e relationship exists, and the person injured
must ______ _____ on that appearance.
- Moe allows Homer to set up a shoe sign stand.
Moe has no right to control Homers work, but
Homer puts a sign up that says Moes Shine
Shop. Homer negligently kills Kenny. - Result?
- To avoid this, Moe should put up a sign that
______ ______________.
10Limited Liability for IC Torts
- (1) If the IC is performing _____ ______
activities, the principal will be liable for
_______s negligence.. E.g., _______ - (2) If the principal _______ selects the IC, the
principal is liable for _______s negligence. - (3) If the IC breached a ________ duty to act.
11(2) Scope of Employment
- Employer is not liable for employees torts
unless they occurred ___________. - (a) Was the conduct of the same _____ or
incident to that which the employee was
______________ - (b) Was the conduct ____________ from authorized
_____ and _____ limits or - (c) Was the conduct at least in part actuated by
a ________________.
12(a) More or Less Authorized
- Does it have to be literally authorized?
- If the employer forbids the conduct, the employer
______ be liable. - Bright line an employer is not liable for an
employees ______________________. - Burns hires Homer and tells him not to use beer
in the reactor. In violation of federal criminal
law, Homer does so. The reactor explodes, killing
Kenny. Result?
13(b) Frolic (no liability) or Detour (liability)
- If vehicle involved
- If employee is driving company car, still must
show it was driven in the _________ but if
employee is driving her own car, then there is a
rebuttable presumption that ____ __________.
- If harm occurs while employee is doing personal
affairs, employer will still be liable unless
there was a ______ _____ from employment. - If employee is frolicking, liability can arise
only when the employee has _________ the scope of
employment.
14(c) Motivated to Serve Employer
- (1) Passengers in car being driven by employee
in cc - Unauthorized
- Trespassers
- (2) Unauthorized means
- Moe authorizes Homer to deliver beer with his
car Homer uses a helicopter, which crashes,
killing Kenny. Moe will ___________. - (3) Employee smoking (tobacco)
- Moe hires Barney, and knows Barney is smoking
while pouring 151, which is inflammable. It
ignites, killing Kenny. Moe will be liable if he
______ or ______ of the risk. - Moe hires Barney even though he smokes on the
job. Barney drops a cigarette, which Kenny then
steps on, causing him to burst into flames. - Result?
- (4) Tripping with 2 Purposes
- Moe hires Homer, and tasks him with going to the
Quickie Mart to buy some beer. Homer also buys
some donuts while there. On the way back, he runs
over and kills Kenny. - Moe is liable so long as there is any _____
______ of the employer being served on the trip.
15Usually no vicarious liability for Employees
Intentional Torts
- Why?
- Exceptions
- If the intentional tort occurs as a ____ ____ to
doing the job - If any ______ runs to the employer
- Physical injuries
- Authorized force
- E.g.
- If employee intentionally picks wrongful means to
promote employers business. - Friction is part of job
- E.g.
- Fraud
- Authorized (actual, apparent, inherent) misreps
- Unauthorized (sometimes)
16Other Forms of Vicarious Liability
- Joint venturers
- A joint venture exists when 2 ore more people
enter into an activity and (1) they have a ______
purpose and (2) there is a _______ right of
______. - What do you think of those hypos on 68?
17Generally No Vicarious
- Owner of car not liable for drivers negligence
- Family car exception an owner is liable for
torts of _______________ who drive with the
owners _______ or _____ permission. - Negligent entrustment Owner is liable, not for
drivers tort, but for letting driver use the
car. - Owner-as-passenger if owner was ________, she
could have prevented the harm.
18Generally No Vicarious Liability
- Bailor for Bailees negligence
- Youll learn more on bar as to when you have a
bailment. - Tavernkeepers
- Exception Dramshop acts create cause of action
in favor of person ______ by a drunk customer.
- Parent for childs torts
- Exception Child is acting as agent of parent.
- Homer sends Bart to the Quickie Mart to replenish
his supply of Duff. Bart drinks it, and as a
result runs his skateboard into Kenny, killing
him. - Also parent can be liable for own negligence in
letting child do the task.
19Multiple Defendant Issues
- Joint Several liability
- If a court finds that more than one defendant
causes an ________ injury to a plaintiff, each is
liable to the plaintiff for the ________ amount.
- Defendants acting in concert
- If two persons act in concert (i.e., _______
_______) and injure plaintiff, each is liable for
the __________ even if the injury is ______
(i.e., you can tell which injuries each one
caused).
20Satisfaction Release
- A plaintiff only gets one recovery
- A release of one defendant doesnt release the
other (unless it says so) but the nonsettling
defendant gets a post-verdict credit by the judge.
21Contribution Among Joint Tortfeasors
- Where joint several liability exists, a
plaintiff can recover all against one defendant. - A plaintiff can execute the judgment against one
defendant.
- A defendant has a right of contribution against
the other jointly liable parties.
22Contribution Methods Limits
- Apportionment
- Equal Shares
- Common law rule
- Comparative fault
- Statutory method
- No contribution against a person who was not held
______ to the original plaintiff. - No contribution in favor of a party who was found
to have committed an ______ tort. - Why?
23Indemnity
- Unlike contribution, a party entitled to
indemnity shifts the __________ to the party who
owes indemnity.
- Available when
- Contract provides. It must be __________.
- Vicarious liability the person who is
vicariously liable can seek it from the
tortfeasor. - Strict Products each supplier is liable to a
customer, but the supplier has a right of
indemnity against ___________, up to the ________
if the product was defective when sold.
24Indemnity Even by Tortious Party
- Some states allow one joint tortfeasor to obtain
indemnity (not just contribution) where there is
a _____ ______ in the _____ of fault between
them. - Suppose Cartman and Bart leave a crate of Duff
beer in one lane of a road, causing cars to veer.
Homer, going more than 50 mph over the speed
limit but nonetheless trying to grab the beer as
he sped by, kills Kenny.