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26 terms

Vicarious Liability

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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