Torts Ii

Front 1

Vicarious Liability:

Respondeat Superior

Back 1

holding the superior for the acts for the acts of the inferior. It started with employer and employee relationships but now it has slipped down to parent and child relationships. We are not talking about holding the parent responsible for negligence we are saying because you have this relationship with the party that did something wrong you are liable. Unless we have been sued in our capacity of the business. Maybe we aren’t sensitive to what is going on. We don’t care about the fairness unless it involves us and the person who brought the child into the world. What matters is that somebody needs to pay money and your child does not have any.

Front 2

Respondeat Superior:

Scope of Liability

Back 2

 The court concluded that she was within the scope of employment when she was on her ride home from work.
 There is a coming and going rule and that was considered to be outside the scope of employment. Why would this be recognized in the first place. Why was the rule created because the company can not control what the employee does during the comute and there was no benefit bestowed on the company so there is no liability.
 Why does the court deviate from the rule? Was the event startling or unusual? Not really it would be more unfair. But now it gets us back to the employeer because her leaving work was considered within the scope of employment.
 We are not suing because of Negligence we are concerned with the scope of employment. Now leaving from work is within the scope of employment.
 Intoxication would be the same as the illness in bussard

Front 3

Respondeat Superior:

Slight Deviation Rule

Back 3

 Slight Deviation rule- Was it a frolic (slight deviation) or deviation (material deviation)? If it was a frolic is sufficiently related to employment (Is vicarious liability) a Detour/Deviation – pursuant of the employee’s personal business. (no vicarious liabiiltiy)
 Slight and Material Deviation are the key terms he suggests we use.
 Dual purpouse ventures are ok.

Front 4

Respondeat Superior:

Slight Deviation Rule- what do we look for to determine?

Back 4

 What do we look at
 1- the employee’s intent
 2- the nature, time and place of the deviation
 3- the time consumed in the deviation
 4- the work for which the employee was hired
 5- the incidental act reasonably expected by the employer and
 6- the freedom allowed the employee in performing his job responsibilities

Front 5

Respondeat Superior:

Can a company insolate themselves by creating saftey procaustions?

Back 5

Courts have agreed that the employer cannot insulate himself from liability by imposing safety rules or by instrucing his employees to proceed carefully- not matter how specific and detailed his orders may be.

Front 6

Respondeat Superior:

Negligence in Hiring or Retention of Employees

Back 6

to be distinquished are when the employer is liable for its own negligence in hiring or retaining an employee without adequately checking the employee's background or failing to property train the empoyee.

Front 7

Independent contractors:

Distinction between an independent contractor and an employee?

Back 7

 Distinquished between an independent contractor and an employee. We do not impose liability on those who hire independent contractor.
 Critical- is the legal designation. The line is blurred. It all turns on control
 IC- no vicarious liability. Exception is when they are contracted to perform an abnormally dangerous activity.
 What do we look for? Test the amount of control. The greater the control the greater the benefit the more likely they are an employee.
 Contract
 Description employee or ic – that does not stop the inquiry.
 How are they paid
 Were taxes taken out
 Uniform?
 Provided tools
 Given instructions

Front 8

Independent contractors:

Violation of statues

Back 8

• The P would bring it up to show that the D violated the statute.
• Presumption and Evidence of Negligence

Front 9

Independent contractors:

Whether a vehicle owner could delegate the responsibility of making a break repair to an independent contractor?

Non-delegable duties

Back 9

Duty to excercies due care when an IC is employed to do work which employer should recognize as causing a recognizable harm. This would mean tha the employer is liable. However, this situation is a nondelagable case. • This is a nondeligable duty
• You are ultimately responsible
• What the D tried to do was to hold the repair person or business responsible for the act or the consequence of the breaks not being in good repair.
• Show evidence of reasonableness to negate the violation of statutes
• How do we treat violations of statutes and how we treat these.
• Have they met the requirements of the statutes or not if not then you are in violation of the statutes and you are liable.
• If the court determines that these are not one of the duties that we want you to delegate. You can not avoid liability if you are not directly liable.
• The owner of the vehical is the one that you sue and the one who is imeediatly responsible because this duty could not be delegated to someone else.
• Similar to Vicarious because we might hold someone else responsible the party that did the repair but we don’t have to because we can hold the principle responsible for failing to meet the requirements of the statute.

Since her duty to maintain her breaks in compliance with the prosivisons of the Vehicle code is nondelegable, the fact that they break failure was the result of her IC's negligence is no defese.

• Rare case

Front 10

Joint Enterprise:

When there are people going on a joint trip and an accident happens? Who would be liable?

Back 10

the burden of establisheding the existence of a joint venture is upon the party assering that the relationship exists. It is used to show that they were not financially interested in the venture of the trip so they could not be held to be held responsible for the negligenct act.

Front 11

Joint Enterprise:

Restatement Scond Torts- for elements of a joint enterprise

Back 11

• An agreement express or implied, among the member of the group
• A common purpose to be carried out by the group
• Community of pecuniary interest in that purpose, among the members
• An equal right to a voice in the direction in the enterprise which gives equal right of control

• The injury that occurred was not in furtherance of the enterprise

Front 12

Joint LIaibility:

Rational

Back 12

was developed by American corts to impose liability upon one person who is engaged in the same activity with another person committing the tortious act. If all the elements are met the other actors are agents in the negligenct act and will be held liable.

Front 13

Bailments:

Back 13

Under the common law a bailment does not make a bailor vicariously liable for the acts of the bailee in the use of the chattel. The common law rule has been altered by decisions and as in the principal case, by statute wiht respect to automobiles. There are owner consent statutes that allow the owner to be held liabile. It is a form of vicarious liability. It is a way of finding a deep pocket. It can be either express or implied.

Front 14

Bailments:

Owner Consent Statutes

Back 14

"Whenever any motor vehical shall be operated upon any public street or highway of this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owenr of such motor vehicle in the operations/

Front 15

Example of Owner consent statutes:

Hertz case

Back 15

Issue whether a car rental agency is liable under the Minnesota safety responsibility act when one of its cars is leased by one person, but operated by another? State that has owner consent statutes.. the courts found that there was implied consent under hertz and that hertz could be found liable. • Hertz says that we told him not to allow other drivers, and the one driving was not given our consent.
• 1- because the inquiry as to whether or not you allow someone to consent does it stop at the first level. Because initially you consented to C driving, or you know that people frequently violate these rules but you are implicitly allowing anyone to drive your vehicle.
• If consent is the touchstone to liability Hertz can say that they only consented to Connely. Then we have to go back and look at the statutes.
• Hertz implied consent, the operator when in an accident is not the agent, encourages liability insurance. Hertz was in an Owner consent statute jurisdiction.
• Hertz can be held responsible it can turn around and get money from connely for breach of K