Torts

A shopper was in a large department store that was remodeling its menswear department and had hired a contractor to do the work. A carpenter employed by the contractor was working on the remodeling job. When the carpenter left the store to take a break, she left a carpenter's level projecting out into one of the aisles, unbeknownst to any store employees. Shortly before she returned 15 minutes later, the shopper came down that aisle and tripped over the level. He fell and struck his head on the sharp corner of a display case. The shopper required hospitalization and sued the store for his injuries. Will the shopper prevail in his suit against the store? A. Yes, because the contractor's employee left the level in the aisle. B. Yes, because the store's employees had a reasonable time to discover the level before the shopper fell. C. No, because the store's employees did not leave the level in the aisle. D. No, because the store's employees were unaware that the level was in the aisle.

ANS: A The shopper will prevail because the employee of the contractor hired by the store left the level in the aisle. The general rule that a principal will not be vicariously liable for the acts of its independent contractor's agent is subject to several broad exceptions, including one for duties that are nondelegable because of public policy considerations. One of these duties is the duty of a business to keep its premises safe for customers. Hence, a business would be liable for the negligence of an employee of an independent contractor to the same extent as for the negligence of its own employee. Here, the carpenter was employed by the contractor, which was hired by the store. The carpenter breached the duty owed to customers such as the shopper by leaving the level projecting out into one of the aisles. The shopper was injured as a result, so he will prevail in a suit against the store. (B) is wrong. As part of the duty owed to customers, the store employees have a duty to make reasonable inspections of their premises to discover unsafe conditions (such as if a customer had spilled something slippery in an aisle). However, regardless of whether they had a reasonable time to discover the level, the store is liable because it is responsible for the carpenter's conduct. (C) is wrong because, as discussed above, the store is liable under these circumstances for the conduct of its independent contractor's employee. (D) is wrong because the store is liable regardless of the knowledge of its employees.

A landlord employed his friend as the on-site manager of one of his apartment buildings despite being aware that he had previously been arrested for criminal battery, disorderly conduct, and driving while intoxicated. The manager did a good job dealing with the general maintenance of the apartment building, although the landlord was aware that he continued to drink heavily. One night the manager, who was extremely intoxicated, attempted to swat an insect on the ceiling of his apartment and could not do so after several attempts. Enraged, he took a pistol from his drawer and shot at the insect. The bullet missed the insect and passed through the ceiling of his apartment into the apartment above, lodging in the leg of a tenant's social guest. Does the guest have a viable cause of action against the landlord? A. Yes, because the guest had been invited onto the property by the tenant. B. Yes, because the landlord was aware of the manager's habitual drunkenness and propensity for violence. C. No, because the landlord cannot be held liable for the manager's intentional torts. D. No, because shooting an insect was outside the scope of the manager's employment.

ANS: B Because the landlord knew about the manager's continued heavy drinking and tendencies toward violence, the guest has a cause of action for negligence in the landlord's hiring of the manager. An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the landlord's retention of the manager under these circumstances may be a breach of that duty. (A) is incorrect because the landlord's liability here is based on negligent hiring rather than the guest's status on the property. (C) is also incorrect. An employer can be held directly liable for the intentional tort of an employee if it was foreseeable and the employer was negligent in hiring or retaining the employee. (D) is a true statement that would be relevant for vicarious liability purposes. However, it does not preclude the landlord from being liable for his own negligence based on the foreseeability of his employee acting violently.

A housecleaning agency was given a key to a customer's house so that the agency could have its employees clean while the homeowner was away. After a maid sent by the agency had finished and left the homeowner's house, she went back because she had forgotten her cigarettes. She neglected to lock the door when she left the second time because she was already late for the next job. When the homeowner returned after a few days away, she discovered that her house had been ransacked and several items of jewelry stolen. The front door was open, and there were no signs of forced entry. If the homeowner brings an action against the agency that employed the maid, what is the likely result? A. She will not prevail, because she is limited to claims for breach of contract based on her agreement with the agency. B. She will not prevail, because the act of the burglar was an independent superseding cause of the homeowner's loss. C. She will prevail, because the maid's failure to lock the door created the risk that someone might enter and take the homeowner's valuables. D. She will prevail, because when the maid returned after having completed her work, she was technically a trespasser, making the agency vicariously liable for any damage she caused to the premises.

ANS: C The homeowner will prevail because the maid's negligence increased the risk of criminal conduct by a third party. Criminal acts and intentional torts of third persons are foreseeable independent intervening forces if the defendant's negligence created a foreseeable risk that they would occur. Here, the maid's failure to lock the door was negligent because it created a risk of burglary; hence, the burglary does not cut off the agency's liability for the maid's negligence. As the maid's employer, the agency is vicariously liable under respondeat superior. (A) is wrong because there is nothing in the facts to indicate that the homeowner waived her right to bring tort claims against the agency; having a contractual relationship with a party does not automatically preclude bringing a tort action against the party. (B) is wrong because the burglary was not a superseding cause of the loss; it was within the increased risk caused by the maid's negligence. (D) is wrong because she reentered to retrieve a personal item that she had brought with her when she went to the job; her return just to get the item was within the scope of her employment and would not make her a trespasser.

Regarding vicarious liability, which of the following statements is true? A. A defendant is not vicariously liable for the torts of an independent contractor unless the defendant was negligent in selecting the contractor B. Respondeat superior is not a type of vicarious liability C. Because of the special relationship between them, an employer is always vicariously liable for her employee's torts D. A defendant may be both vicariously liable and directly liable in the same action

ANS: D A defendant may be both vicariously liable and directly liable in the same action. Vicarious liability is liability that is derivatively imposed. Because of the special relationship between the parties (e.g., employer-employee), if one person commits a tortious act against a third party, the other person can be liable to the third party for this act. This may be so even though the other person played no part in it, did nothing whatever to aid or encourage it, or indeed had done everything possible to prevent it. In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor. Respondeat superior IS a type of vicarious liability based on an employment relationship. Under the doctrine of respondeat superior, an employer will be vicariously liable for her employee's torts ONLY IF the torts were committed within the scope of the employment relationship. The general rule is that a defendant is not vicariously liable for the torts of an independent contractor that she hires. However, there are several broad exceptions to that rule which have nothing to do with negligence in the selection of the contractor (which would make the defendant directly liable rather than vicariously liable).

A developer constructed several small stores in a commercial district. She received a bid from a contractor to install awnings on the front windows of the stores. The developer had heard that the contractor did shoddy work, but the price was right and the contractor expressly assumed all of the risk of any liability. The developer subsequently sold one of the stores to a barber. A few months later, an awning collapsed without warning, injuring a customer who was about to enter the barbershop. An investigation by the building inspector revealed that the awning collapsed because the brackets used by the contractor were cheaper and weaker than the required brackets, although they looked the same. The developer and the contractor are now both bankrupt. If the customer sues the barber for his injuries, is the customer likely to prevail? A. Yes, because the barber had a nondelegable duty to keep the premises safe for customers and those passing by. B. Yes, because the developer did not exercise reasonable care in hiring the contractor to install the awnings. C. No, because the contractor assumed all of the risks from his work. D. No, because the barber had no opportunity to oversee the contractor's actions.

ANS: D The customer is not likely to prevail because the barber had no opportunity to oversee the contractor's work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor's negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail. (A) is incorrect even though it is true that a business owner would be vicariously liable to customers and passersby injured by the negligent work of an independent contractor that he hired. Here, however, the barber did not engage the contractor and is not responsible for the contractor's conduct. (B) is similarly incorrect. While the developer arguably was negligent in hiring a contractor who does shoddy work, her negligence will not be imputed to the barber. (C) is incorrect because it is irrelevant. Had the barber hired the contractor, the fact that the contractor contractually assumed all of the risks of liability would not preclude the customer from recovering against the barber.

Under the doctrine of respondeat superior, an employer: A) May be liable for negligently supervising an employee B) Is liable for the tortious frolic of an employee C) Is liable for all tortious acts committed by his employees D) May be liable for an intentional tortious act committed by an employee

ANS: D Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employees if the tortious acts occur within the scope of the employment relationship. Under this doctrine, an employer may be liable for an intentional tortious act committed by an employee. While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer. An employer is not liable for ALL tortious acts committed by his employees ; the acts must be within the scope of the employment relationship. An employer is NOT liable for the tortious frolics of his employees. An employee on a delivery or business trip for his employer may commit a tort while deviating from the employer's business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment, but a more major deviation is a "frolic" for which the employer would not be liable. While it is true that an employer may be directly liable for negligent supervision, the employer will NOT be liable for negligently supervising an employee under the respondeat superior doctrine, which only imposes vicarious liability. An employer's liability for negligent supervision will be direct liability rather than vicarious liability.

A principal will be vicariously liable for the tortious acts of her independent contractor __________. A. if the principal negligently supervised the independent contractor B. if the principal negligently selected the independent contractor C. under the doctrine of respondeat superior D. if the independent contractor is engaged in inherently dangerous activities

ANS: D A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers. Respondeat superior is the doctrine that makes employers vicariously liable for the torts of employees; it does not apply to independent contractors. A principal may be liable for negligently selecting or supervising an independent contractor. However, that liability is for her own negligence; it is not vicarious liability.

Which of the following circumstances has no bearing on whether an employer will be vicariously liable for an employee's intentional tort? A. The employee was furthering the business of the employer. B. Friction was generated by the employment. C. Force was authorized in the employment. D. The employee was negligently supervised by the employer.

ANS: D Vicarious liability is derivatively imposed liability. The fact that the employee was negligently supervised by the employer has no bearing on whether the employer will be vicariously liable for the employee's intentional torts; rather, it will make it more likely that the employer will be directly liable for its own negligence. In contrast, the fact that force was authorized in the employment, friction was generated by the employment, or the employee was furthering the business of the employer make it more likely that the employee's intentional torts will be found to be within the scope of employment.