Respondeat Superior & Liability of Multiple Defendants

Doctrines of Alternative Liability, Joint Enterprise, & Market Share Liability

3 doctrines exist that allow a jury to find multiple Ds liable even if the P cannot show which D's conduct caused his injury. (1) Doctrine of Alternative Liability (2) Doctrine of Joint Enterprise (3) Doctrine of Market Share Liability

Indemnification

A D is entitled to indemnification (full reimbursement for damages paid to another party) when the D is a passive tortfeasor and seeks to assert his claim against an active tortfeasor. A D entitled to indemnification is entitled to recover the full amount he paid to the P from the active tortfeasor. Indemnification is generally available in situations of vicarious liability or when it is provided for by K. Some states have limited an employer's right to seek indemnification from employees in certain situations.

Contribution

Contribution is a theory of recovery when there are joint tortfeasors. Under joint and several liability, a P can recover 100% of the damages from any one of the joint tortfeasors. However, a joint tortfeasor may seek contribution from other joint tortfeasors if he pays more than his percentage share of liability. The amount that can be recovered in contribution is based on pure comparative fault, and a D cannot recover from another joint tortfeasor more than the tortfeasor's percentage share of fault.

Vicarious Liability for Acts of Independent Contractors

Generally, a principal is NOT vicariously liable for the torts of an independent contractor. However, there are several exceptions to the general rule. A principal will be liable for torts committed by an independent contractor if: (1) the independent contractor is engaged in an inherently hazardous activity; (2) the duty owned by the principal is non-delegable (i.e., the duty of care owed to an invitee); OR (3) through the doctrine of estoppel where the principal holds the independent contractor out as his agent to a third-party, the third-party reasonable relied on the care and skill of the contractor, and the third-party suffered harm as a result of the contractor's lack of care or skill.

Joint and Several Liability

In a jurisdiction permitting joint and several liability, if multiple Ds are the proximate cause of a single indivisible harm, then the P may recover the entire amount of his damages from any singled D (but may not receive a double recover). A D who pays more than his fair share of the damages may bring an action for contribution against the other Ds for the difference.

Vicarious Liability of Employer: Liability Where Respondeat Superior Doctrine is Inapplicable

In certain situations, an employer can be held liable even if the doctrine of respondeat superior (an employer/employee relationship and conduct within the scope of employment) is inapplicable. Such situations include when: (a) the employer intended the conduct or consequences; (b) the employer was negligent or reckless in selecting, training, retaining, supervising, or controlling the employee; (c) the conduct involved an employer's non-delegable duty to an injured person that it had a special relationship with; OR (d) the employee had apparent authority, the agent's appearance of authority enabled the agent to commit the tort, and the third-party relied on that authority. Apparent authority is created when: (1) the employer holds the employee out as having authority; AND (2) the third-party reasonably believes the employee has authority to act.

Doctrine of Market Share Liability

Market share liability is appropriate where the following factors are present: (1) all the named Ds are potential tortfeasors; (2) the allegedly harmful products are identical and share the same defective qualities (or were "fungible"); (3) the P is unable to identify which D caused her injury through no fault of her own; AND (4) substantially all of the manufacturers which created the defective products during the relevant time are named as Ds. If applicable, the manufacturers (of the product identical to the one which harmed the P) are liable in their proportion to the share of the market at the time P's injury occurred, regardless of actual causation. The rationale for this theory is that each manufacturer's liability would approximate its responsibility for the injuries caused by its own products.

Employee vs. Independent Contractor

The determination of whether a person is an employee or an independent contractor centers on whether the principal had the right to control the manner and method in which the job is performed. An employee is an agent whom the employer controls (or has the right to control) the manner and means of the agent's performance of work. An independent contractor is a person who contracts with another to do something for him, but who is not controlled nor subject to the other's right to control with respect to his performance. The contractor may or may not be an agent. Generally, if the principal has substantial control in dictating the manner and method in which the job is performed, then the person is deemed to be an employee of the principal. In contract, a person subject to less extensive control is considered an independent contractor.

Doctrine of Alternative Liability

The doctrine of alternative liability allows the jury to find ALL Ds liable if (1) multiple Ds are negligent, (2) but it is unclear which one caused the P's injuries.

Doctrine of Joint Enterprise

The doctrine of joint venture or joint enterprise allows the negligence of one D to be imputed to the others if: (1) multiple Ds were engaged in a common project or enterprise; AND (2) all Ds have made an explicit or implied agreement to engage in tortious conduct.

Vicarious Liability of Employer: Doctrine of Respondeat Superior

Under the doctrine of respondeat superior, an employer is vicariously liable for an employee's negligent acts if the employee was acting within the scope of employment. An employee acts within the scope of employment when: (a) performing work assigned by the employer; OR (b) engaging in a course of conduct subject to the employer's control. Factors to determine if conduct is within the scope of employment include whether: (i) it is the kind the employee is employed to perform; (ii) it occurs substantially within the authorized time and space limits; and (iii) it is motivated (in whole or part) by. the purpose to serve the employer. Additionally conduct is within the scope of employment if it is of the same general nature as the authorized, or incidental to the conduct authorized. Conduct is NOT outside the scope of employment merely because an employee disregards the employer's instructions. An employee's act is NOT within the scope of employment when: (1) it occurs within an independent course of conduct; AND (2) is not intended b the employee to serve any purpose of the employer. An employee's intentional torts are NOT generally within the scope of employment UNLESS the act: (a) was specifically authorized by the employer; (b) was driven by a desire to serve the employer; OR (c) was the result of naturally occurring friction form the type of employment.