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Doctrine of respondeat superior (imputed negligence)
a type of vicarious liability defined as an employer is responsible for the acts of their employees caused in the course and scope of their employment.
Purpose: finding a financially responsible defendant.
Under respondeat superior, why should employer to bear the risk of loss with certain limits for an employee's harm within the course of his work/conduct?
(1) Has control over the business, including the work of employees, and
(2) Stands to profit from the employee's services.
Coming and Going Rule
respondeat superior does not usually cover an employee's ordinary commute (going-and-coming to work).
when an employee endangers others with a risk arising from or related to work.
How do we determine whether an employee's dangerous conduct falls within the scope of respondeat superior?
whether, in the context of the particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.
How do we determine whether the employee's actions were within/outside the scope of his employment? (ie, whether he has protection of respondeat superior)
The court must determine whether employee's actions were a "slight deviation" (detour) or a "substantial deviation" (frolic).
This involves a factor-balancing test.
analyze: RS => SDR => F&D => Factors
What is the factor-balance test for determining slight/substantial deviation?
Courts must consider:
(1) employee's intent,
(2) the nature, time, and place of the deviation,
(3) the time consumed by the deviation,
(3) the type of work for which the employee was hired,
(4) The incidental acts reasonably expected by the employer, AND
(5) The freedom allowed the employee in performing his job responsibilities
What is the "slight deviation rule?"
According to the slight deviation rule, it must be determined whether the employee was on a frolic (substantial dev) or a detour (slight dev).
What is a "frolic" under the "slight deviation rule?"
- a pursuit of one's personal business as a "substantial deviation" from or abandonment of the employment
- if an employee abandons, even temporarily, the employee's business for personal reasons, the act is not w/in the scope of his employment
- thus, employer not liable under respondeat superior
What is a "frolic" under the "slight deviation rule?"
(!) a "slight deviation" that is sufficiently related to the employment to fall within its scope.
(2) . A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, UNLESS the very character of the diversion severs the employment relationship.
(3) Acts that are necessary to the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment, if the conduct is not a "substantial deviation" from the duties of employment.
(4) Personal acts that are not far removed in time, distance, or purpose are deemed to be incidental to the employment.
What types of damages can be collected from a vicariously liable party?
- compensatory damages
- punitive damages
Under respondeat superior, when can an employer be held vicariously liable for intentional torts of employees? (COMPENSATORY damages)
An employer may be held liable for the intentional torts of his employee when:
- they are reasonably connected with the employment and so within its scope.
But when the employee acts are from purely personal motives:
- he is considered to have departed from his employment and the employer is not liable.
Under respondeat superior, when can an employer be held vicariously liable for intentional torts of employees? (PUNATIVE damages)
The principal (whether an individual or a corp) is liable for punitive damages only if:
(1) the principal authorized or ratified the act,
(2) was reckless in employing or retaining the agent, or
(3) the agent was employed in a managerial capacity and was acting in the scope of employment. (Employer can seek indemnity from employee)
General Rule regarding vicarious liability for actions of "independent contractors?"
- company is not vicariously liable for the torts done by its independent contractors.
- Respondeat superior does not apply to independent contractors.
what is a "independent contractor"?
defined as one who engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof.
An independent contractor has the right to control the physical details of the work.
RS: exceptions to "general rule re: independent contractors"? (5)
(1) where there is a non-delegable duty (ie, a duty that must be contracted-out, overseer is liable) (restmt agrees)
(2) when one expresses/implies that another is their servant or agent (assumes responsibility for their acts to the extent of that representation)
(3) Inherently dangerous activities or peculiar risk of harm
(4) when one contracts with another to perform illegal activities
(5) when an employer negligently/recklessly chooses a contractor or fails to stop its unreasonably dangerous practices (liable for own neg & contractor neg)
RS: exceptions to "general rule re: independent contractors"? (5) (explained)
(1) Where there is a non-delegable duty, (the person upon whom the duty is imposed is responsible for an independent contractors' actions in negligently performing that duty.)
(2) One who expressly or impliedly represents that another party is his servant/agent may be held v. liable for the latter's negligent acts to the extent of that representation.
(3) Inherently dangerous activities or peculiar risk of harm:
If the independent contractor is engaged in inherently dangerous activities, the company will be liable when the activity involves a peculiar risk of harm that calls for more than ordinary precaution.
(4) Illegal activities:
One who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor.
(5) If a company is negligent in selecting the contractor or in giving improper directions or equipment or in failing to stop any unreasonably dangerous practices that come to its attention, the company will be held liable for its own negligence, which has combined with that of the contractor
Joint Enterprise (Joint Venture): General Rule?
MAJORITY rule: vicarious liability may be imposed on those who engage in a joint venture or enterprise
Elements of a joint enterprise (4): (restmt agrees)
(1) An agreement, express or implied, among the members of the group;
(2) A common purpose to be carried out by the group;
(3) Community of pecuniary (business proprietary) interest in that purpose, among the members; and
(4) An equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Additional notes re: joint enterprise
(1) Joint enterprise as a means of imposing vicarious liability is more commonly applied in automobile accident cases.
(2) It generally does not apply to parties who take pleasure trips or other nonbusiness journeys together.
(3) Joint ownership without more usually is not enough to impose vicarious liability; there must be some business purpose involved.
Vicarious liability: Majority Rule Re Bailments?
A bailment does not make a bailor vicariously liable for the acts of the bailee in the use of the chattel
Bailement: what is the "family purpose doctrine?"
(1) The family purpose or "family car" doctrine is where the owner of an automobile is held vicariously liable when the car is negligently driven by a member of the immediate household.
(2) Courts have consistently held the parents of teenager drivers liable even when the teenager was exceeding the scope of the permission.
Bailment: Automobile Consent Statutes (MAJORITY)
Many states have statutes that make the owner of an automobile vicariously liable for injury caused by the negligent operation of the vehicle as long as it is being used with the owner's consent.
Bailment: Negligent Entrustment
an owner/bailor may be liable in entrusting the chattel to the bailee.
(just employer may be negligent in hiring an employee, and the hirer may be negligent in selecting the independent contractor)
Imputed Contributory Negligence: General Rule
not generally imputed onto another unless the relationship between them is such that the person would be vicariously liable as a defendant for the other's negligent acts.
Imputed contributory negligence is largely rejected in the following areas. (IMPORTANT! BELL MENTIONED IN REVIEW)
(1) MOST STATES DO NOT HAVE CONTRIBUTORY NEGLIGENCE ON THE FOLLOWING AREAS:
(a) Driver and passenger
(b) Husband and wife
(c) Parent and child
(d) Employer and employee (vicarious liability)
NOTE: courts may still find any of the above liability if vicarious liability or joint ventures.
what are the TWO exceptions where the courts will consistently impute "contributory negligence" onto another based on a special relationship?
(1) a master-servant relationship or
(2) a finding of joint enterprise will justify the imputation of contributory negligence.
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