VCL: Vicarious Liability?
Are business partenrs ever vicariously liable for the torts of other partners?
Yes, as longs as the torts are committed in the scope of the partnership. The same rule applies to joint ventures (similar to parternship), but generally entered into for a limited time and purpose. In a partneship, there is a more or less permanent business arragnement for the purpose of carrying on some general business, so that the acts of one can appropriately by charged agaisnt the other
What elements whether an activity is a joint venture?
1. An agreement, express or implied, btwn the members; 2. A common purpose shared by the members 3. A common percuniary interest and 4. A mutual right of control SIGNIficance: if an activity is a joint venture, each "joint ventureer' will be liable for the torts of others committed within the scope of the venture Note: most joint venture cases involve automoble trips
Under what circumstances are employers vicariously liable for the tortious conduct of their employees?
Employers are liable when the tortious act occurs within the scope of the employment relationship. This is known as the docterine of respondeat superior. Note: "Scope of employment" is obviously a slippery concept however, in general, an act is within the scope if its purpose to some extent is to serve the employer's objectives, it is of the general type employee is employed to perform, and it occurs substantially within the time and place authorized by the employer BEWARE: an employer can be DIRECTLY liable for an employee's tortious conduct, if the employer was negligent himself. For instance, sending a durnk worker on a delivery would be negligence ITSElf making the employer directly liable to anyone injured by the drunk employee's driving
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Ex: Say igor is Dr. Frankstins chauffeur. Igor drives frank to his laboratory one day, when the limo collides with a car driven by Madeliine. Frakn is injured the accicient was due to both Igor and Madeline's negligence. Frankk sues Madeline her fefense will be contribuotry neglignece; not Frank personally but Igor's which will be imputed to Frank onteh basis of the prinicipal-agent relationship between them NOte: Situations where another's contributory negligence won't be imputed to plaintiff include; parent's contribuotry negligence won't be imputed to his child; spouse's contributory neglignece won't be imputed to other spouse; and drivers contributory neglingence won;t be imputed to passengers (unless as above, the driver is the passenger's agent
HELPFUL HINTS CONCERNING VICARIOUS LIABILITY
Here's a thumbmail sketch of some important points to remember about vicarious liability (these are fleshed out in the hypoethical cards to follow) Not limited to negligence: If any intentional tort occurs within the scope of employment the employer will be liable e.g. assualt, battery, false imprisonment, emotional distress) Instructions don't insulate the principal: The principal can't insulate himself with careful instructions that the employee violates Business partners: are vicariously liable for torts committed within the scope of the partnership Joint ventures: are vicariously liable for torts committed within the scope of the venture ( a joint requiers an agreement a common purpose, a common pecuniary interest, and a mutual right of control A car owner is generally not liable for torts committed while others drive his car ( although some states have changed this by statute, making car owners liable for torts committed by family members using the car onwers liable for torts committed by family members using the car with theowner's permission (this is the "family car docterine) or anyone using it with permission (the permissive use docterine) Parents are not vicariously liabe for their chilren's torts but they may be directly liable for giving the child a dangerous object the child lacks the maturity and judgement to control
What is "imputed contribuoty negligence?
Imputed contributroy neglignece bars the plaintiff from recovery due to someone else's neglignece. There are only three prinicipal situations in which someone else's negligence will be imputed to the plaintiff, under Rest 2s485: Prinicipal-agent: Joint venture; and a suit based on injury to someone else (wrongful death or loss of consortium; here, the victim's contriubtory negligence will be imputed to plaintiff
What is an "auto guest statute"
It is a statute found in a few states, mandating that non-paying passengaer cannot sue the driver of a vehicle unless thier injuries resulted from conduct the driver more serious than mere negligence. The aim of auto guest statutes is to prevent COLLUSION between driver and passengers and to discourage 'ingratitude' by passengers. To constiute a guest, the passenger must be a non-paying passenger ( although paying a few tolls or helping out with gas will not change his sttus; he cannot be a business guest; he cannot be a child; and he cannot be the vehicle owner Note passengers will want to avoid guest staus so they can hodl the driver liable for mere negligence instead of a higher standard, be it gross negligence or recklessness
What is a DRAM Shop Act?
It is the statute that imposes civil liability on a liquor vendor for torts caused by a purchaser's drunkenness. Most states have such acts. Note: This modifies the common law rule, which was that a liquor vendor wasn't liable for any injuries caused by the purchaser's drunkenness. In general, actions under the act may be pressed against the vendor by third parties only, not by the purchaser himself. Note: Most dram shop acts are applicable against commerical suppliers only (bars or liquor stores) not private ones
In general, is a car owner vicariously liable for the torts of another driving his car?
NO. However, a minority of states have altered this with either the "family purpse" docterine, or the "permissive use" docterine. Under teh "Family purpose: doctdrine, the car owner is vicariously liable for the neglignece of family or household memebers who use the car for their own persoanl use. ( The user is said to be furthering a" family prupose" under the permissive use doctrine, the owner is liable for the negligence of anyone not just family members, driving with owner's permission
In general are employers vicariously liable for the tortious conduct of independent contractors?
No, however, exceptions to this include situations where: 1. Ultrahazardous activities are involved 2. Duty is non-delegable due to public policy considerations duty of railraod to fence in tracks; duty of car owner to maintain the car) 3. illegal activites in these cases, eve if an employer delegates the activity to an independent contractor, the employer remains vicarioulsy liable. Note: an employer can be directly liabe for his own negligence vis a vis an independent contranctor (choosing an incompetent contractor or giving him inadequate insturctions. if that happens then injuries inflicted by the contractor will be recoverable as direct damages from the employer. (But this isn't vicarious liablity) Note: an indp contractor is distingused from an employee in that traditionally, a contractor's phyiscal conduct in performing services is not subject to a right of control by the employer; an employee is NOTE: Regarding the vicarious liability of landowners-the rule is that the owner of land or a builidng who entrusts reparis or other work to a contractor remains liable for any negligence by the contractor injuring those on or outside the land, if the owner remains in possession during the progresss of the work, or if the accident occurs after the owner resumes possession following the work
In general are parents vicariously liable for the torts of their children?
No, the theory being that parents lack control over thier children's acts that would JUSTIFY imposign vicarious liablility. However, tere are common situations where a parent is laibel for a child's torts directly that is, due to the parents' OWN negligence. These include: 1. Giving the child a dangerous object, which the child lacks the maturity or jdugement to control( note that his is a kind of negligent entrustment 2. Not protecting against a dangerous tendency the parent knows the child has( leaving matches around a child who's started fired in the past) 3. NOt controlling the child when the parent and child are together 4. Not warning others of a child's known dangerous tendencies (ie negligence)
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So if someone works for you and causes a car accident on company business, you're vicariously liable due to the employer-employee relationship. If on the other hand you send an employee out to run an errand and you he's drunk, and he hits a pedestrian, that's negligent entrustment, bc you should have known he'd likely injure someone in his drunken condition. You'd be liable for YOUR OWN negligence in sending him on the errand
What is vicarious liability?
Vicarious liability makes one liable for another's wrongful conduct, due to a special relationship between them. Note that this is really liability w/o fault, bc the perosn who's being held liable has done nothing wrong. note. The most common context for vicarious liability problems is employers and employees, where employers are liable for their employees' tortious acts committed within the scope of teh employment relatinship. BEWARE! Always establish the existence of the tort itslef first- typically, that means you have to see if the employee was negligent. W/o that underlying tort, there's nothing for someone else to be vicariously liable for.
What's the difference btwn direct and vicarious liability?
When you're talking about vicarious liability, you're talkng about situations where you're liable for someone else's tortious conduct. Distinguish this from situations where you may be liable for that person's conduct due to YOUR OWN negligence. For instance, if you have a small child who takes a pack of machines from your coffee table and burns down your neighbor's house, you wouldn't be vicariously liable bc parents typically aren't vicariously liable for their children's torts. But if Jr. has a long history of playing with matches and you leave a brandy snifter full of them within his reach, you could be directly liable bc leaving the matches in the little firestart's reach would be in itself negligent.
What's the difference btwn vicarious liability and neglignet entrustment?
With vicarious liablity, you've done nothing tortious yourself; you just have a realtionship with someone else that justifies making you liable for their torts. With negligent entrustment, you did do something tortious-you lent somethng (typiclly a caar( to someone you should have known was likely to use the loaned object to harm others
