Vicarious Liability

1
Vicarious Liability

• Or
• Where is the Deep Pocket?

2
Catchin 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

3
The 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.

5
Factors 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

6
Liability 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?

7
Authorized 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?

8
Liability 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.

9
Employer 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
  ______ ______________.

10
Limited 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.

15
Usually 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)

16
Other Forms of Vicarious Liability

• Partners

• 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?

17
Generally 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.

18
Generally 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.

19
Multiple 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).

20
Satisfaction 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.

21
Contribution 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.

22
Contribution 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?

23
Indemnity

• 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.

24
Indemnity 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.