Vicarious Liability

26 terms by ElisabethC07 

Ready to study?
Start with Flashcards

Create a new folder

Advertisement Upgrade to remove ads

Vicarious Liability

One person be liable for the action of another trough a relationship

Respondeat Superior

Where the employer is responsible for the employee

Conduct of the Servant is within the Scope of Employment

(A) It is of the kind he is employed to perform
(B) It occurs substantially within the authorized time and space limits
(C) It is activated, at least in part, by a purpose to serve the master (Can be dual purpose)
(D) If force intentionally used by 5 against another the force is not unexpectable by the M

Goings and Comings Rule

An employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work
-Exception: When employee endangers other with a risk arising from or related to work

Goings and Comings Rule Foreseeability Test

Employees conduct that is neither startling not unusual

Slight Deviation v. Substantial Deviation Test

(1) The employee's intent
(2) The nature, time, and place of the deviation
(3) The time consumed in the deviation
(4) The work for which the employee was hired
(5) The incidental acts reasonably expected byt he employer; and
(6) The freedom allowed to employee in performing his job responsibilities

Employer

Is a principal who employs someone to perform service in his affair and who controls or has the right to control the physical conduct of the other in the performance of the service.

Employee

Is someone employed by an employer to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the controller
-The employer has the right to control how the action is performed by someone

Independent Contractor

Person who contracts with another to do something for him who is not controlled by the other nor subject to the other''s right to control with respect to his physical conduct in the performance of the under taking

Helpful Clues for Independent Contractor v. Servant

1. Extent of Control; by agree; the master may exercise
2. Whether or not engaged in distinct occupation or business
3. Kind of business
4. Skill required
5. Who supplies the instrumentality, tools, and place of work
6. Length of time employed
7. Method of Payment (time v. job)
8. Whether job is part of regular business of employer
9. Parties intention/beliefs
10. Whether principal is or is not in business

Non-Delegable Duties

One who by statute or by admin regulation is under a duty to proved specified safeguards or precautions for the safety of other for whose protection the duty is imposed for harm caused byt he failure of a contractor employed by him to provide such safeguards or precautions

Apparent Authority

One who employs an IC to perform service for another which are accepted in the reasonable belief that the services being rendered the employer to be his servants, is subject to liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities a though the employer himself had done the work of construction and maintenance

Joint Enterprise

4 Common Elements:
1. An agreement, express or implied, among the member of the groups
2. A common purpose to be carries out by group
3. A community if pecuniary interest in that purpose, among the members
4. An equal right to a voice in the direction of the enterprise, which gives a equal right of control

Bailment

When you give someone possession but not title
-Generally, the bailee is not liable for the actions of the bailor

Family Car Doctrine

Place liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family
-Not liable for his own negligence; he is vicariously liable for the tortious acts of the driver

Joint and Severally Liable

When two or more tortfeasors are jointly and severally liable each is subject to liability for all of the P's damages. The P can obtain a judgment against all defendants and then enforce it against anyone of them, or partly against one and partly against another

Appointment Requirement

Except for cases of concerted action and vicarious liability, appointment is required if the harm done by two or more tortfeasors were separate or divisible as where A caused the plaintiff's broken leg.

Indivisible Injury

If the injury was indivisible in nature, then each tortfeasor who contributed proximately to that injury was liable for the entire judgment, although the P could not collect more than one full recovery

Actions in Concert Vicarious Liability

Whether or not the injury was indivisible, if the defendants acted in concert, or one defendant acted tortiously and the other was vicariously liable each defendant was liable for the entire injury

Contribution

Appointment is completed under the rule that when one tortfeasor paid more han his appropriate share of liability, he could ordinarily obtain contribution from the other tortfeasors, a rule generally followed in the latter part of the 20th century

Restatement 3d Torts

When persons are liable because they acted in concert all persons are jointly and severally liable for their share of comparative responsibility assigned to each person engaged in concerted activities

Pro Tanto or Dollar Credit Rule

Because 1 party has settled and paid a portion the other should only be liable for the portion left over
-Subtract the settlement from the total damages
-Can't sue a settling party for damages

Reduction on % Basis

A Damages 100,000
B % fault 50,000
C Liability 50,000
Recovery 75,000
-C settle for 25,000; don't find % liable till trial
-C;s liability is capped at C's fault share

Indemnity

Allows someone who is without fault, compelled by operation of law to defend himself against the wrongful act to another, to recover from the wrongdoer the entire amount of his loss
-Limited to those cases in which they would be indemnity is held derivatively or vicariously liable for the wrongful act of another

Right of Contribution

When a release... is given in good faith to two or more persons liable in tort for the same injury... (b) it shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

Public Duty

This doctrine provides that the police have a duty to the public as a while, but not to any one specific individual

Please allow access to your computer’s microphone to use Voice Recording.

Having trouble? Click here for help.

We can’t access your microphone!

Click the icon above to update your browser permissions above and try again

Example:

Reload the page to try again!

Reload

Press Cmd-0 to reset your zoom

Press Ctrl-0 to reset your zoom

It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.

Please upgrade Flash or install Chrome
to use Voice Recording.

For more help, see our troubleshooting page.

Your microphone is muted

For help fixing this issue, see this FAQ.

Star this term

You can study starred terms together

NEW! Voice Recording

Create Set