Vicarious Liability

Vicarious Liability

VL is an umbrella term under torts which imputes liability to D for injuries caused by another because of a special relationship

1. respondeat superior

2. frolic and detour

3. independent contractors

4. bailments

5. joint enterprise

Damages:

1. Compensatory

2. Punitive, when:

   1. authorized

   2. reckless hiring

   3. managerial agent

Respondeat Superior

Places responsibility on the employer if an employee is acting within the scope of his employment. Conduct of a servant is within the scope of employment if, but only if: (a) It is of the kind he is employed to perform, (b) it occurs substantially within the authorized time and space limits, and (c) it is actuated at least in part by a purpose to serve the master.

Limitations:

1. coming and going rule

2. foreseeability

Frolic and Detour

FROLIC: An employer is not vicariously liable for an employee who is on a frolic. A Frolic is when the employee abandons an employer’s business while in pursuit of his own personal business. 

DETOUR: However, an employer is vicariously liable for employees on a detour. An employee is on a detour when he slightly deviates from an employer’s own business for his own reasons. 

1. The factors for slight deviation are as follows (ITWIF):

   1. employees intent, nature, time, and place of deviation,

   2. time consumed,

   3. work for which the employee was hired,

   4. incidental acts reasonably expected by the employer, and

   5. freedom allowed to the employee in performing his job and responsibilities.

Independent Contractors

An employer is not liable for the actions of an independent contractor, unless the duty was non-delegable or the contractor was working under apparent authority. An IC is one who is engaged to perform a 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

Non-Delegable Duties

There are certain responsibilities that courts will not permit to be delegated to an independent contractor. 

1. Ultrahazardous activities (HALWAW):

   1. high degree of risk of harm

   2. ability to eliminate risk by due care

   3. likelihood harm will be great

   4. whether it is a common practice

   5. appropriateness of the place activity occurs

   6. whether value to the community outweighs the risk

2. Statute/regulation

3. Peculiar risk of harm: Activities that call for more than ordinary precaution. 

4. Illegal activities

5. Landowners

Apparent Authority

A principal is VL when it holds an actor out as having authority, or knowingly permits the actor to assume authority, and a third party (1) reasonably believes and (2) reasonably relies on the principal’s manifestations. Proof of apparent authority must come from the conduct of the principal, not the agent, and control is not required.

Bailments

Under the common law, a bailment does not make a bailor vicariously liable for the torts of the bailee in using the chattel. For cars, the Grave’s amendment preempts state law and provides that there is no VL for damage arising out use by renters or lessors

Exceptions:

1. Some states create an exception for automobiles through the family car doctrine, a legal fiction that imposes vicarious liability on the owner of a vehicle when it is negligently driven by a member of the immediate household. Liability attaches when:

   1. The owner furnished the car for the use, pleasure, or business of the family, and 

   2. The car was being used with the owner’s express or implied permission.

2. Presumption that owner, if passenger, controls the vehicle

3. Automobile consent statutes

4. Omnibus clause: An omnibus clause extends liability insurance to the insured, household members, and anyone using the car with permission, so long as the use is within that scope.

Joint Enterprise

Imposes VL upon one person who is engaged in the same activity with another committing the tortious act.

Factors (APPE):

1. Agreement (express or implied) among members of the group

2. Common purpose to be carried out by the group

3. Common pecuniary interest in that purpose among the members

4. Equal right of control: equal right to a voice in the direction of the enterprise