General Tort Concepts

What types of relationships can raise vicarious liability issues?

(1) employer-employee

(2) independent contractor;

(3) partnerships or joint venturers;

(4) Automobile owner-driver;

When will an employer be held vicariously liable for torts committed by an employee?

An employer will be held vicariously liable for torts committed by an employee if the tortious act occurred within the scope of the employment relationship.

Could respondeat superior apply if the employee took a detour for a personal purpose?

Yes, an employee making a minor detour a personal purpose is still acting within the scope of employment. However, respondeat superior will not apply if the deviation in time or geographic area is substantial (frolic).

Can respondeat superior apply to intentional torts committed by an employee?

As a general rule, respondeat superior does not apply to intentional torts unless: (1) the employee is furthering the business of the employer; (2) force is authorized in the employment; or (3) friction is generated by the nature of the employment.

When can a principal be held vicariously liable for torts of an independent contract?

Generally, a principal will not be held vicariously liable for torts of an independent contractor unless (1) the principal controls the manner and method in which the independent contractor performs the job; or (2) where a duty is nondelegable, such as the duty of the business to keep its premises safe for customers.

When can a partner or joint venturer be held vicariously liable for torts of partner/joint venturer?

A partner or joint venturer will be held vicariously liable for torts committed by partner/joint venturer in the scope and course of the affairs of the partnership/joint venture.

What is the general rule for automobile owner-driver vicarious liability?

As a general rule, automobile owners are not vicariously liable for torts of another person driving their vehicle. States have drawn out exceptions via statute for permissive use or family purpose doctrine.

When will a parent be held vicariously liable for torts committed by their children?

Under common law, a parent is not vicariously liable for torts committed by their children, but limited liability for a child’s intentional torts is imposed in many state statutes.

What should always be considered when assessing vicarious liability?

Always consider whether the defendant could be held liable for his own negligence if not vicarious liability.

What is joint and several liability?

Under the traditional common law, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable for the entire damage amount. Many states have abolished joint and several liability by statute. Wh

What is contribution?

When joint and several liability applies, a tortfeasor who paid more than their share of damages is allowed to recover the excess from the nonpaying tortfeasor in proportion to their fault through contribution.

When is contribution not available?

Contribution is not available for intentional torts.