Vicarious Liability and Misc Considerations

Active Tortfeasor

The person that actually commits the tortious act

Passive tortfeasor

The one who will be liable to the third party for the act of the active tortfeasor

Employer-Employee Liability

An employer will be vicariously liable for tortious acts committed by an employee if the acts occur within the scope of the employment relationship (“respondeat superior”)

Frolic or a Detour

An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable

Intentional Torts and Vicarious Liability

Usually, intentional tortious conduct by employees is not within the scope of employment except when: (1) the employee is furthering the business of the employer; (2) force is authorized in the employment; (3) friction is generated by the employment (e.g. a bill collector)

Employer liability for own Negligence

Employers may be liable for their own negligence by negligently selecting or supervising their employees

Independent Contractors, generally

In general, the hiring party will not be vicariously liable for the tortious acts of an independent contractor when the hiring party does not control the manner and method in which the independent contractor performs the job

Independent Contractors: Own Negligence

A principal may be liable for his own negligence in selecting or supervising the independent contractor

Partners and Joint Ventures

Each member of a partnership or JV is vicariously liable for the tortious conduct of another member in the scope and course of affairs of the partnership or JV

Automobile Owner and Driver, Generally

An automobile owner usually is not vicariously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts have developed specific exceptions

Family Car Doctrine

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission

Permissive Use Automobile Liability

A number of states impose liability on the owner for damage caused by anyone driving with the owner’s consent. However, rental cars are not vicariously liable for negligence of their customers due to federal statute

Negligent Entrustment

An owner may be liable for their own negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident on the theory that they could have prevented the negligent driving.

Driver as an Agent for Owner

The car owner will be liable if the driver is acting as the owner’s agent

Bailor/Bailee, Generally

Usually a bailor is not vicariously liable for the tortious conduct of the bailee

Bailor/Bailee Negligent Entrustment

A bailor may be liable for their own negligence in entrusting the bailed object

Parent/Child Liability

A parent is not vicariously liable for the tortious conduct of their child at common law, but most states by statutes make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (for example, 10k)

Child Acting as an Agent for Parents

Courts may impose vicarious liability if the child committed a tort while acting as the agent

Parent Liable for Own Negligence

The parent may be held liable for their own negligence in allowing the child to do something. If the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, the parent may be liable for not using due care in exercising control to mitigate such conduct.

Tavernkeepers: Common law

At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct

Tavernkeeper Modern Law

Many states have enacted Dramshop Acts, which create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability in the absence of a Dramshop Act, instead basing the theory on ordinary negligence principles

Joint and Several Liability

At common law, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. If the injury is divisible, each D is liable only for the identifiable portion

Defendants Acting in Concert

When two or more defendants act in concern and injure P, each is jointly and severally liable for the entire injury even if the injury is divisible

Statutory Limitations on Joint and Several Liability

Many states have abolished joint liability in cases based on fault either: (1) for those defendants judged to be less at fault than the plaintiff; or (2) for all defendants regarding noneconomic damages. In these cases, liability will be proportional to the defendant’s fault.

Satisfaction

Recovery of full payment is a satisfaction. Only one satisfaction is allowed, so a plaintiff cannot pursue other Ds in the case once their damage claims have been fully paid. Until satisfaction, one may proceed against all jointly liable parties

Release

In most states, release of one tortfeasor does not discharge the other tortfeasors unless it is expressly provided for in the release agreement

Contribution generally

A defendant who pays more than his share of damages under joint and several liability has a claim against other jointly liable parties for the excess.

Comparative Contribution

Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants

Equal Shares

In some states, defendants pay equal shares regardless of degrees of fault

Contribution Tortfeasor liability

The contribution defendant must be originally liable to the plaintiff. If the contribution defendant has a defense that would bar liability, they are not liable for contribution

Contribution Intentional Torts

Contribution is not allowed among intentional tortfeasors

Indemnification Generally

Indemnification involves shifting the entire loss between or among tortfeasors and is available: (1) in vicarious liability situations; and (2) under strict products liability for the non-manufacturer

Loss of Consortium and Family Relationships

Can be brought by one spouse for injury to the other spouse or by a parent when their child is injured. Any defense that would reduce or bar recovery by the injured family member would also reduce or bar recovery for interference with the family relationship

Survival of Tort Actions

Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and personal injury, but not torts invading intangible personal interests such as defamation, invasion of privacy, or malicious prosecution

Wrongful Death

Wrongful death grants recovery for pecuniary injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is only allowed to the extent that the deceased could have recovered in an action had they lived

Intra-Family Tort Immunity

At common law, one member of a family unit could not sue another in tort for personal injury, Most states have abolished spousal immunity, and a slight majority have abolished parent-child immunity (except for negligent supervision). Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct; or (2) automobile accident cases to the extent of insurance coverage

Government Tort Immunity Generally

This has been reduced over time, but where it survives, immunity attaches to governmental, not proprietary, functions

Federal Government

Under the Federal Tort Claims Act, the US has waived immunity for tortious acts except in cases for: (1) assault; (2) battery; (3) false imprisonment; (4) false arrest; (5) malicious prosecution; (6) abuse of process; (7) libel and slander; (8) misrepresentation and deceit; and (9) interference with contract rights. Immunity is also not waived for “discretionary” acts (those involving considerations of political or economic policy, usually by senior officials). Ministerial acts (those performed at the operational level of government) are not immune from liability.

State Government Immunity

Most states have waived their immunity to the same extent as the federal government

Local Government

About half of the states have abolished municipal immunity to the same extent as for the state government.. However, the “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Where municipal immunity still exists, courts generally limit application of sovereign immunity by not granting it for proprietary functions (could be performed by a private corporation).

Immunity of Public Officials

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose.

Charitable Immunity

Most Jurisdictions have eliminated charitable immunity