Vicarious Liability

What is Vicarious Liability?

A type of Joint and Several Liability whee an innocent party is held liable for the actions of another person through a legal relationship

In terms of policy, why have vicarious liability?

• Ensure P is made whole with deep pockets

• Incentivize rigorous training

How do you prove a Joint Venture for Vicarious Liability?

(1) an agreement (explicitly stated/written or implied by conduct) (e.g. LLC)

(2) a common purpose (e.g. selling saunas)

(3) community of pecuniary interest in that purpose (in business together sharing profits and liabilities)

(4) an equal right to a voice/control

What is Family Car for Vicarious Liability? What are the policy rationales?

Vehicle owner who gave permission to FAMILY (express or implied) is liable for family member’s negligent driving

• Extends to boats

• Even if consent exceeded, owner is still liable (e.g. Dave says, “Kid, only drive to the grocery store. Kid ends up racing on the freeway).

• Policy: 1) incentivizes parents to monitor kids 2) P can be made whole with family money

What is Automobile Consent Statute for Vicarious Liability?

Vehicle owner who gave permission to ANYONE (express or implied) is liable for individual’s negligent driving (e.g. guests).

• Constitutes standard bailment (only transferring possession, not title)

• Exception: Doesn’t apply to thieves. (because you didn’t consent to your car being stolen).

What is Negligent Entrustment? Is it Vicarious Liability?

No, it’s a direct form of liability for giving dangerous item to unfit person (e.g. car to visibly intoxicated person, guns, knives)

What is Respondeat Superior?

A type of vicarious liability. A type of Joint and Several Liability. Employer is liable for employee’s negligence—even if employer did nothing wrong.

What is an employer ALWAYS liable for under Respondeat Superior?

• Negligently caused injuries by employees acting within the scope of their employment.

• Its own torts (e.g. negligent hiring, inadequate response to intentional torts)

What is an employer NOT liable for under Respondeat Superior?

• Intentional torts committed by employees outside the scope of employment. Depends on foreseeability of the intentional torts.

What are the policy rationales behind Respondeat Superior?

• Hire and train better employees

• Assures making P whole (deeper pockets)

• Spreading risk

• Employees benefit employers—let the employers be responsible for their actions

Is there Respondeat Superior for Independent Contractors?

No

How do we determine who’s an independent contractor and who’s an employee?

1. Right to Control

2. Tax Treatment (1099 or W2)

3. Who Supplies Tools?

4. Who Dictates Hours?

5. Who Provides Office Space?

6. Have to Ask for Vacation Time?

What test does CA use to determine if one is an independent contractor?

3 elements: ABC Test:

A - Free from control/direction

B - Performing work outside the usual course of business (e.g. plumber fixing sink at LA Times)

C - Customarily engaged in an independent trade (e.g. owning LLC)

Even if one is determined to be an Independent Contractor for, what is the Hiring Party STILL liable for?

If the task poses great risk of serious bodily harm or death if done negligently (e.g. fixing car brakes)

Going & Coming Rule (Will employer be held liable?)

Employer not liable for daily commute

Exception: Risk arises from workplace (e.g. inhaling pesticides at work results in a crash)

Social Events: Rule (Will employer be held liable?)

Employer liable for injuries occurring during social events if employer paid/organized the event, encouraged/expected attendance, or benefited from camaraderie (e.g. firm sponsored Friday drinks)

Intentional Torts (Will employer be held liable?)

Employer not liable UNLESS violence is foreseeable outgrowth of job

Employee Faces Punitive Damages - Will employer be held liable?

Employer is not liable UNLESS employer approved act after the fact (e.g. good job pal!) OR employee was managerial acting for the company (e.g. CEO Tim Cook)

Employee is a Harasser - Will employer be held liable?

No liability if first time harassment—unless there’s a dramatic power differential (e.g. doctor harasses patient under anesthesia).

List out the following:

• 3 Categories for Scope of Employment

• Their Definitions

• Is Employer Liable?

Detour: Slight, foreseeable deviation (e.g. stopping for lunch). Employer LIABLE.

Frolic: Complete abandonment for personal business (e.g. plumber uses truck to haul a couch home). Employer NOT liable.

Dual Purpose: Simultaneously serving own + employer interests (e.g. filling out expense reports while smoking in a hotel room). Employer LIABLE.

What factors are considered when determining if it’s a frolic or detour?

1. Employee’s intent

2. Nature, time, and place of deviation (determine to what degree employee abandoned)

3. The time consumed in the deviation

4. The work employee was hired for

5. The incidental acts reasonably expected by the employer

6. How much freedom the employee has when performing job responsibilities

If a worker and a third party are both at fault in an accident that damages the employer's truck, the worker's negligence is imputed to the:

Employer. Employer is barred from recovering for damage to the truck.