Respondeat Superior – Employer is responsible for the tortious acts of its employee, not an independent contractor. Family car will also follow this rule. Ostensible Agency: When an independent contractor is represented as an employee, this will follow respondeat. The employer will be held liable if the employee’s actions are within the scope of employment if: 1) it is the kind of work he’s employed to perform, 2) it occurs substantially within the authorized time and space limits of the workplace, 3) it is actuated, at least in part, by a purpose to serve the master/employer, 4) if it’s force intentionally inflicted by the servant/employee, the master/employer must have had the means to predict it.
Expressed prohibition of an act does not necessarily protect the employer from vicarious liability. Policy – provides an incentive to employers to avoid risks of liability.
If the contractor is engaging in a non-delegable duty, then principal/employer is vicariously liable for any L.C.H. caused by contractor’s conduct. Apparent Authority Doctrine: employers take an act that leads one to believe that independent contractor is an employee. Law of Agency: employer is liable for the acts of his employee (or independent contractor) if a person who is not an employee appears to an outsider to have been given authority by the employer, then the employer is liable for the acts of the agent. Apparent Agency Test: (1) Representation by the employer; (2) reliance on representation by 3rd party (P); and (3) change in position by 3rd party in reliance on representative.
4 Theory’s underlying tort law:
Corrective justice : Tort law is about righting moral wrongs committed by an entity to another entity. Fist fights resulting in a battery charge. Does the issue involve a moral wrong against one party by the other.
Optimal deterrence: Creating incentives to shape the behavior of individuals and institutions. Optimal level of risk taking encouraged, beyond that is discouraged.
Loss Compensation: Personal injury… tort law should provide compensation for costs of medical care and other injuries, usually monetary.
Loss distribution: Not concerned with redressing harm, but with spreading that harm throughout society.
DUTY (Generally No Duty To Act)LEGAL ISSUE FOR THE JUDGE
FORESEEABILITY: requires an identifiable class of individuals as victims.
Inaction in Rescue: To not interfere with a rescue or preclude someone from rescuing
Special Relationship – Co-adventurers, doctor/patient, employer/employee, common carrier, husband and wife, innkeeper, ship captain/crew, concert, landlord/tenant. A duty to act affirmatively to prevent foreseeable risk and to provide aid.
Risk creating situation – Whenever one person creates a situation of risk for another person, they owe them a duty of ordinary care to ensure no harm or further harm befalls the victim.
Negligent Entrustment – When you knew or should have known that if you give someone an instrument, it will likely be used to cause harm to another. You owe a duty to whomever is foreseeable based on the instrument.
Governmental agency – liable for injuries if they notice and identify a dangerous condition but fail to fix it within a reasonable time. Ministerial decision – Failing to do something that the government has said it should do makes them liable. Discretionary decision – sovereign immunity applies here when the government decides a course of actio
standard of the ordinary person with the physical condition (blind, amputee etc.). (Trumps custom). Most duties lie here. Learned hand theory applies as a risk versus benefit calculation. Burden < Probability x Likelihood/magnitude then you have behaved unreasonably.
Reasonable Child in the situation – Children will be held to the ordinarily prudent child of similar age except when engaging in adult activities, than they are reasonable adult.
Utmost Care – A common carrier is responsible for the highest degree of care of their passengers. Some places have lowered to reasonable standard.
Rescue Doctrine – If a rescuer is saving someone they are only held for gross negligence.
Customs – Evidence of what a reasonable person would do, but not binding.
Neg. Per Se – A safety Statute defines what is the standard of care. (Trumps all) The statute must be designed to protect the harm that occurred, not some other harm. (sheep boat). EXCEPTION: If the statutory duty is breached because it is impossible to fulfill, it would be more harmful to follow or as a necessity to violate then this is not a breach. (ie, walking with traffic if the traffic is heavier on the correct side)
Tedla – Defense to Negligence Per Se – One does not have to comply with safety statute if non compliance would lessen the risk
Gorris – NPS does not apply when the statute did not contemplate the damage involved