Torts II

respondeat superior/vicarious liability

-       employers can be held liable for the torts of certain employees, if the torts were committed in the course of employment

o   this is called vicarious liability or the respondeat superior principle

-       an employer is not personally at fault, so this is a variant of strict liability

goal of vicarious liability

(a) the prevention of future injuries, (b) the assurance of compensation for victims, and (c) equitable spreading of losses caused by an enterprise

-       holding the enterprise liable enables costs of employee liability to be “internalized” and adjusted for in pricing and insurance

o   insurance is readily available for the employer so that the risk may be distributed among many like insured paying premiums and the extra cost of doing business may be reflected in the price of the product

respondeat superior restatements

-       Restatement (Third) of Agency, § 2.04 (2006):  “An employer is subject to liability for torts committed by employees while acting within the scope of their employment.”

-       Restatement (Third) of Agency § 2.04 cmt. b. (2006):  “Viewed as a doctrine within the law of agency, respondeat superior is a basis upon which the legal consequences of one person's acts may be attributed to another person. Most often the doctrine applies to acts that have not been specifically directed by an employer but that are the consequence of inattentiveness or poor judgment on the part of an employee acting within the job description. Most cases applying the doctrine involve negligence resulting in physical injury to a person or to property.”

scope of employment

• this is a fact question for the jury

• traditionally, the act is of the same general kind as authorized or expected by the employer and is conducted within an authorized space and at authorized times

scope of employment restatement

The Restatement (Third) of Agency says there must have been a “purpose” or “motive” to serve the employer, but this does not seem to be the majority rule, with some courts using a broader formulation such as whether the service done by the employee was in the ordinary course of business

disregarding the employer’s instructions or orders

vicarious liability extents to “negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within scope of employment”

role of fault

the majority rule is that employer is not vicariously liable if the employee was not legally responsible for the tort (i.e. the employee wasn’t negligent or had an immunity)

vicarious liability and “fault”

vicarious liability is imputed liability

o   when an employer is sued on a vicarious liability theory, the employer’s own fault is irrelevant to that cause of action

o   there must be an underlying tort committed by the employee; where the employee has not committed a tort, the employer cannot be vicariously liable for any harm the employee has caused

o   there may be independent liability for the employer arising from the same event (such as negligent hire, negligent supervision, or negligent training)

culpability vs. liability of employee

many courts have held that if an employee personally could not be held legally responsible for a tortious act (for example, because of statutory immunity), then the employer cannot be vicariously liable. Other courts, however, have held that an employer can be vicariously liable when the employee cannot be sued when the defense of the employee is based on a statute of limitations or immunity, because these do not go to the merits of the employee’s culpability

joinder re vicarious liability

in most states the plaintiff can sue either the employee or the employer, or both

effect of release re vicarious liability

courts uniformly will find that a settlement or release with a Defendant employee will extinguish a vicarious liability claim against the employer

enterprise liability

holding an enterprise strictly liable is related to employer liability. “One idea is that the price of goods and activities should accurately reflect the accident costs they cause. Holding an enterprise strictly liable for harms it causes facilitates this “internalization of costs,” which in turn reduces the costs of accidents. . . . If the price of a particular product or service actually reflects its total costs, including accident costs, the market will tend to favor the cheaper (safer) product or service. Companies will thus have an incentive to make their products and activities safer to compete in the marketplace.”

borrowed servants

where one employer “loans” one of its employees to another employer and that employee negligently injures someone

serving two masters restatement

The Restatement (Third) of Agency § 7.03, cmt. d(2) (2006): “suggests that liability depends upon which ‘employer is in the better position to take measures to prevent the injury suffered,’ looking at which employer ‘has a right to control’ the employee’s conduct.”

serving two masters

o   “the traditional approach is that the first employer is vicariously liable, while the ‘borrowing’ employer is not, unless evidence leads to a different conclusion based on who has the right to ‘control’ the servant”

o   “some authority holds both employers liable if the employee is acting within the scope of his employment for both masters simultaneously”

serving gratuitously restatement

“The relationship of master and servant can be established without payment or promise of payment. Restatement (Third) of Agency §§ 1.01, cmt. d & 7.07(3)(b) (2006). However, that relationship is not established unless the putative servant submits himself to the control of the employer.”

the going and coming rule

rational is that when someone is driving to work, he or she is subjected only to the same risks or hazards that the public faces while driving; the risks therefore are not causally related to the employment

o   this is widely, perhaps universally accepted

exceptions to the going and coming rule

(1) Where the employee is ‘on call,’ as long as the particular tortious act was otherwise within the scope of employment. (2) Where the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks. (3) Where the employer, either by general policy or specific directive, instructs the employee to carry out some job-related errand during the commute. (4) Where the commute serves a dual purpose for both the employer and the employee

o   any of these may present a jury question where the facts are disputed

temporary deviations restatement

The Restatement (Third) of Agency § 7.07, cmt. d (2006):  “purely personal acts” such as “personal hygiene, smoking, and eating may be within the scope of employment because they are incidental to the employee’s performance of assigned work.”

frolic and detour

a special factual category involves the employee who, during working hours, goes to a place not associated with employment for a purpose not associated with employment

intentional torts of employees

these do not usually give rise to vicarious liability of employers, however, if the employee has a motive to serve the employer’s interests, that might be highly relevant

broader tests for vicarious liability

often the main focus of a court’s decision is based on “the employee’s motive or purpose” and the “reasonable foreseeability of the employee’s act”

caregivers

those who have undertaken, at least implicitly, to care for the plaintiff who is relatively helpless – may be subject to special rules of liability

trust, authority, and incentive

some jobs may provide an incentive for misbehavior

o   EX: police officers, priests/counselors, and hospital day care employees

employer’s primary liability as an alternative theory

o   “Where vicarious liability seems doubtful, especially where it appears that the employee’s tort may be outside the scope of employment, plaintiffs often plead in the alternative that the employer is liable for its own negligence in hiring, retaining, training, or supervising the employee. . . . This is not vicarious liability at all, but rather liability based on the employer’s own fault. . . . In these cases, the duty of the employer to the plaintiff is often based on the ‘special relationship’ the employer has with the employee.”

o   “Remember that a claim for negligent hiring, retention, training or supervision is a negligence claim. Thus to succeed the plaintiff must also prove that the risks created by the employer’s negligence came to fruition—that is, that the employer’s negligence was both a factual and proximate cause of the plaintiff’s harm.”

independent contractors and ostensible agents

-       “where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance, he is not liable for the negligent acts of the contractor in the performance of the contract”

o   “the important difference between an employee and an independent contractor is that one who hires an independent contractor ‘has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it’”

o   “in contrast, a servant is traditionally one who is ‘employed to perform services in the affairs of another, whose physical conduct in the performance of the service is controlled, or is subject to a right of control, by the other’”

independent contractors and ostensible agents restatement

-       in determining whether a contractee maintains the right of control, several factors are to be considered:

o   (a) the extent of control which, by the agreement, the master may exercise over the details of the work;

o   (b) whether or not the one employed is engaged in a distinct occupation or business;

o   (d) the skill required in the particular occupation;

o   (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

o   (f) the length of time for which the person is employed:

o   (g) the method of payment, whether by the time or by the job;

o   (h) whether or not the work is a part of the regular business of the employer; and

o   (i) whether or not the parties believe they are creating the relation of master and servant

test for status of an independent contractor

-       to many courts the primary factor is the right to control the manner or means of accomplishing the job, including the details of the work

o   other factors are the distinct occupation of the contractor, the type of skill required, the beliefs of the parties, who supplies the means of doing the work, the location of the work, the duration of the relationship, decisions about when and how to work, the means of payment and if the work is part of the employer’s regular business

structuring relationships by contract

courts have found that a contract that terms the employees independent contractors is not a definitive way to escape liability

the incompetent independent contractor

this exception means that a Defendant cannot escape liability by selecting or hiring an incompetent contractor

independent contractor restatement

-       “except as stated in §§ 58- 65, an actor who hires an independent contractor is not subject to vicarious liability for physical harm caused by the tortious conduct of the contractor”

o   § 58. Work Involving Abnormally Dangerous Activities

§  would not apply when the employer/business would have only a “general anticipation of the possibility that the contractor might be negligent in some way and thereby cause harm to a third party”

o   § 59. Activity Posing a Peculiar Risk

o   § 60. Work on Instrumentalities Used in Highly Dangerous Activities

o   § 61. Activities Involving a Trespass, Nuisance, or Withdrawal of Support

o   § 62. Possessors and Lessors of Land

o   § 63. Precautions Required by Statute or Regulation

o   § 64. Activities Under Public Franchise or in a Public Place

o   § 65. Work Accepted as the Hirer's Performance of the Work

“non-delegable” terminology

when courts say a duty is non-delegable, they mean only that the person who hires an independent contractor does not escape liability under the independent contractor rules. The independent contractor himself is also liable for his own negligence

duties imposed by statutory requirements restatement

“vicarious liability may also be imposed when a statute or administrative regulation imposes obligations on the actor concerning the work that the independent contractor is hired to do, and the contractor’s failure to comply with that obligation causes harm”

landowners and construction contractors

a landowner’s duty to maintain property in a safe condition cannot be delegated to another, unless the contractor has been negligent and created a temporarily risky condition during construction

apparent agency (apparent authority) is based on principles of estoppel

if the principal has created or permitted to be created a reasonable impression of a principal-agent relationship, and if an injured party has relied on that impression, agency may not be denied, and vicarious liability may be applied – the key issues for courts are appearance and reliance

o   idea is that if a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party reasonably relies on the apparent agency and is harmed as a result

o   under the doctrine, a principal can be held vicariously liable in tort for injury caused by the negligent acts of his apparent agent if the injury would not have occurred but for the injured party’s justifiable reliance on the apparent agency

meaning of reliance

in many hospital malpractice cases involving the work of doctors at the facility the issue has been whether the “patient’s belief that the hospital and employees were rendering health care" or rather that the “patient was looking at the institution rather than the doctor for care”

managed heath care or HMOs

some HMOs hire their own doctors as employees, and others contract with independent physicians

partnership

each partner is personally liable for the torts of other partners

joint enterprise

-       all are liable when persons outside the enterprise are injured

o   a joint enterprise exists “where there is (1) an agreement, express or implied, (2) a common purpose, (3) a community of interest, and (4) an equal right of control”

concert of action and civil conspiracy

this imparts joint-and-several liability to a co-conspirator who may not be liable for the underlying tort when the parties either “‘(1) acted in concert with or pursuant to a common design with the tortfeasor, or (2) gave substantial assistance to the tortfeasor's conduct’”

aiding and abetting

similar to liability to conspiracy, but this “‘focuses on assistance in committing the underlying tort’”

entrustment of a vehicle - negligent entrustment

a Defendant “may be liable for negligently entrustment of the car to one who is incompetent to drive

this is not vicarious liability, but instead requires proof that the entrustor-defendant knew or should have known of the entrustee’s incompetence, and that the plaintiff’s injury resulted from that incompetence

entrustment of a vehicle - owner in the car with right of control

this is ordinary negligence

when the defendant permits another to drive, but himself remains in the car, as owner he retains some degree of legal control and he may be liable for failing to exercise that control

entrustment of a vehicle - ordinary bailment

simply lending “a car to a competent driver, so that there is a bailment, with neither actual or legal right of control, there is no agency and no liability”

entrustment of a vehicle - owner-consent statutes

some state statutes “make the individual owner liable for the negligence of the drier even in the case of a pure bailment, provided only that the owner consented to the use of the car”

entrustment of a vehicle - family-purpose doctrine

about a dozen states have a judicially-created rule “that if a car was maintained for general family use, the legal owner would be liable for its negligent use by a member of the family”

strict liability

-       strict liability is liability imposed without regard to a defendant’s intent, or without regard to a breach of the duty to use reasonable care (i.e., negligence)

-       there is a “continuum of culpability” for the three recognized bases of tort actions:

o   intent

o   negligence

o   strict liability

-       strict liability is in fact subject to several limitations, and is imposed in a limited number of specific situations – not “absolute liability”

injuries caused by animals - trespassing animals restatement (strict liability)

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 21 (2010):  an owner of livestock or other animals (other than dogs and cats) that intrude on another person’s land, “is subject to strict liability for physical harm caused by the intrusion.” – some states have special statutes regarding grazing animals

injuries caused by animals - abnormally dangerous animals restatement (strict liability)

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010): “provides for a form of strict but limited liability for the owner or possessor of an animal that has ‘dangerous tendencies abnormal for the animal’s category.’”

-       some states have rejected strict liability for harms caused by domestic animals, requiring proof of the owner’s or keeper’s negligent conduct

injuries caused by animals - wild animals restatement (strict liability)

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 22 (2010): strict liability is “usually imposed” for animals that are “wild by nature,” such as “lions and tigers and bears”

impoundments, nuisances, and beyond

“we think that the true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape”

o   if a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril

o   if it does escape and cause damage, he is responsible however careful he may have been

impoundments, nuisances, and beyond - substantial interference

substantial interference with the use of land is required and usually turns on effective proof

impoundments, nuisances, and beyond - unreasonable invasion restatement

The Restatement (Second) of Torts § 826 (1979) is often cited: “an intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible”

impoundments, nuisances, and beyond - public nuisance

a cause of action for public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right, such as endangering the health or safety of a considerable number of persons.’. . . If the pollution constitutes a public nuisance because it substantially interferes with public health, safety, or convenience, the rule is that any person who has damages different in kind from the public generally may recover damages for the nuisance

impoundments, nuisances, and beyond - environmental and zoning laws

statutes and agency regulations address pollution and zoning laws address the appropriate use of the land

abnormally dangerous activities restatement rule imposing strict liability for abnormally dangerous activities

The Restatement Second (1) the condition of the home observed before and after blasting commenced; (2) the temporal relationship between when the strongest blasting vibrations occurred and when damage was first observed; (3) evidence that the damage could have been caused by blasting; and (4) the reasonable inference that such damage was unlikely to be caused by other forces that typically cause cracking over longer periods of time

abnormally dangerous activities restatement in determining whether an activity is abnormally dangerous

the following factors are to be considered:

o   (a) existence of a high degree of risk of some harm to the person, land or chattels of others;

o   (b) likelihood that the harm that results from it will be great;

o   (c) inability to eliminate the risk by the exercise of reasonable care;

o   (d) extent to which the activity is not a matter of common usage;

o   (e) inappropriateness of the activity to the place where it is carried on; and

o   (f) extent to which its value to the community is outweighed by its dangerous attributes

abnormally dangerous activities restatement two-part test for determining when an activity is abnormally dangerous

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010): (1) the activity must create ‘a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage

abnormally dangerous activities risks or harms avoidable by reasonable care restatement

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 cmt. h (2010) notes that the Defendant’s activity is not “unavoidably dangerous” and therefore not a matter of strict liability if potential victims can “commonly succeed in avoiding injuries

abnormally dangerous activities - when a plaintiff or others contribute to the activity

strict liability is appropriate where the activity, such as blasting, causes harm “without meaningful contribution from the conduct of the victim or of any other actors”

abnormally dangerous activities - factual cause

while liability may be strict, proof of a causal relationship between the activity and the harm is still required

abnormally dangerous activities - history of strict liability for blasting

courts once required direct physical impact from an event, like blasting, to impose liability, but modern courts have  moved away from this artificial requirement to impose liability based on consequences rather than specific impact

abnormally dangerous activities - strict liability for other abnormally dangerous activities

these activities include high-energy activities such as testing rockets and pile-driving, fireworks, poisons such as crop-dusting and pest control, hazardous wastes, and lateral and subjacent support of the land

abnormally dangerous activities - contributory negligence and assumption of risk traditional rule

o   in some states contributory negligence is not a defense to a strict liability claim, because strict liability is not based on negligence

The Restatement (Second) of Torts § 524 (1977) says that assumed risk is a defense and that “knowingly” subjecting oneself to a risk of harm is a defense

abnormally dangerous activities - contributory negligence and assumption of risk comparative responsibility restatement

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 25 (2010) notes that if the Plaintiff in a strict liability case is contributorily negligent “in failing to take reasonable precautions” his recovery should be reduced by his share of comparative responsibility, making the Defendant’s activity not “abnormally dangerous” at all