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Torts II
South Texas College of Law Houston
Field, Ted L.

Torts II

Ted Field

Summer 2012

Russell L. Weaver, et al., Torts: Cases, Problems, and Exercises (3d ed., LexisNexis 2009).

I. Vicarious Liability- one person is liable for the torts of another not based on direct fault, (employer and employee) based on special relationship. Form of strict liability.

a. Respondeat Superior – Employer employee relationship.

i. Employer responsible for actions of employee during course of employment.

ii. Policy reason for having Respondeat Superior – employers have insurance to cover the course of business including accidents. We distribute the burden to those who have benefit from the enterprise.

iii. Fruit v. Schreiner- (drunken insurance salesman) P sues employer b/c they have the money, creates opportunity to actually collect.

a. Employee must have been the direct cause and liable, then employer can be held responsible, (go after both but can only collect the judgment from one)

2. Control theory- employers have right to control over the action of an employee so responsible for their action

i. Was the employee’s action within the scope of their employment?

3. Enterprise Theory- Liability based on the benefit the employer gains from the employee’s actions

i. Was the purpose of the actions, at least in part, to further some legitimate purpose of the employer’s business.

iv. Wong-Leong v. Hawaiian Independent Refinery- (partying refinery worker) – party after hours for the purpose of fostering good will is in the scope of employment.

1. Liability of the employee must be established first before you ask if the actions were in the scope of employment.

b. Employer-employee relationship- who is an employee.

i. Buitrago v. Rohr- (Balloon independent contractor) Factor test Restatement of agency 220- Copy from slide- weighed, not elements required, not majority rule.

1. Right of control (most important factor)

2. Distinct occupation or business

3. Kind of occupation, whether work is usually done under the direction of the employer or by a specialist without supervision

4. Skill required in the particular occupation

5. Supply of tools and place to work

6. Length of employment

7. Method of payment, by time or job.

8. Whether Part of regular business of the employer (least important)

9. Whether the parties are creating a master servant relationship

10. Whether the principle (employer) is or is not in business

ii. Ermert v. Hartford Ins. – (Hunting accident) – CEO/chairman/majority stock owner of small corp. during recreational activity acting within scope of employment?

1. Yes, still just an employee of the corporation. Yes working on the hunting cam he brings potential clients is within scope of employment.

c. Scope of Employment-

i. Courtless v. Jolliffe-(Truck at the gas station)-

1. Going and coming rule-No vicarious liability while traveling to and coming from work. Except,

i. Special Errand Rule- using roadway required in performance of duties

ii. Special Hazard- (even if going to or coming from work)

iii. Compensation for time and travel

iv. Dual Purpose – (talking to client while driving)

ii. Laird v. Baxter Health care(outside med sales accident) –

1. Frolic or Detour –

a. Detour- a normal deviation from the scope of work that is an acceptable action in the course of work. Still within the scope of employment and employer is still liable.

b. Frolic- a significant deviation from working in the employer’s interest that is exceedingly marked and unusual. No longer within the scope of employment and employer is no longer liable.

c. Not going on the most direct route is not considered a frolic.

d. The action must be an action that in no longer within the normal bounds of being in the interest of the employer. Even if not a physical detour.

2. Frolic and Return-

a. Frolic is over then the employee’s own business is completed and the employee returns to the business of the employer

b. Usually the employee is NOT back within the scope of employment Until actually back on the authorized route. (think: a bus driver off his route)

c. Horseplay – workers’ comp concept-

i. Extent and seriousness of horseplay

ii. Whether activity was mixed with performance of duty or abandonment of duty

iii. Extent that horseplay had become acceptable at work

iv. Whether horseplay had b/c a regular incident of employment

v. What was the risk of injury

d. Employer’s Vicarious Liability for Intentional Torts-

i. Sunseri v. Puccia- (overacting bouncer)

1. Dual purpose –Committing an Intentional tort while acting in the interest of the employer. Employer is liable

2. If acting purely out of self-interest employer not liable

3. Restatement 228 – Copy from slides

a. It is the kind he is employed to perform.

b. It occurs substantially within the authorized time and space limits

c. It is actuated at least in part by a purpose to serve the master and

d. If the intentionally used by the servant against another, the use of force is not

e. Conduct far beyond the authorize action

ii. Plummer v. Center Psychiatrists (psychologist sex)

1. Sexual violations-

a. Control test- acting within the control of the employer as a psychologist.

b. Enterprise- seduction of patient manifestly not in the interest of the employer.

e. Vicarious Liability and Punitive Damages-

i. Brueckner v. Norwich University (Military Hazing)

1. Punitive damages need Malice, proof of bad spirit and wrong intent, truly reprehensible conduct.

2. Negligent indifference is not considered malice.

ii. Complicity Theory- Punitive damages must show actual

pt in service does not take it out of being a wild animal.

3. Liable even when exercising utmost care to prevent harm.

4. Any action that causes harm by the animal that is characteristic of its class , or of which the owner knows or has reason to know, creates strict liability

ii. Domesticated –

1. An animal by custom devoted to the service of mankind at the time and in the place in which it is kept

2. Only when the possessor (not necessarily the owner) knows or has reason to know that the animal has dangerous propensities abnormal to its class. Although he has exercised utmost care to prevent the harm.

a. Restatement 2 ,Bees – just b/c you can’t confine an animal does not take it out of the category of a domestic animal as long as it is in the service of mankind

b. Restatement 3, not necessarily, must be decided in each jurisdiction.

iii. Class means species, not bread ( dog not German Shepherd)

iv. Sinclair v. Okata – dog bite case

1. Previous dog bites that can be explained by the dog being excited does not create a dangerous propensities abnormal to its class.

2. Amount of previous bites does not determine propensity.

v. Local areas modify the common law, e.g. leash laws.

vi. Livestock – Old common law all animal trespass was strictly liable, middle common law in USA okay as long as fenced in. western states flipped it and made the strict liability based on fencing out the livestock.

vii. Even though in a case there is no strict liability in a dog bight case there might still be a cause for action based on Int. torts or Negligence.

viii. Strict liability still requires proximate cause and harm, just takes care of negligence.

ix. Comparative fault can be raised as a defense in a strict liability case. Still works even though not really comparing fault with fault.

x. Contributory Negligence is not a Defense in a strict liability case.

c. Abnormally Dangerous Activities

i. Fletcher v. Rylands

1. Strictly liable when you keep an item on your property that will inherently cause mischief if it escapes (abnormally dangerous activity).

2. Can only be used b/c no breaches of duty so no negligence and no trespass to land b/c not intentional.

a. On appeal – Rule is limited to things that are non-natural uses of land.