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Torts II
South Texas College of Law Houston
Bauman, John H.

05/26/07- Carpenter

Vicarious Liability – A Transition from Fault-based Liability to Strict Liability: Legal Responsibility as a Policy Issue

Vicarious Liability
a) Fault of the defendant is no longer the basis of liability.
b) The defendant is held liable for a tort committed by another.
c) What justifies imposing liability in the absence of fault?
d) Look first at the relationship between the defendant and the actual tortfeasor.

Respondeat Superior
a) The doctrine of Respondeat Superior holds that the employer is liable for torts committed by an employee while the employee was acting within the “course and scope of employment.”
b) The policy basis for imposing this liability may limit the situations in which it is available.

Fruit v. Schreiner (salesman gets drunk at employer work conference and kills 3rd party)
There are two primary theories of respondeat superior liability:
Control: Liability whenever the act of the employee was committed with the implied authority, acquiescence or subsequent ratification of the employer.
The control theory bases the imposition of liability on the employer’s right to control and direct the activities of the employee.
This approach looks at what the employee was doing and asks whether it was part of the employee’s job (i.e. whether it was within the course and scope of the employment).

Enterprise: Liability whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury.
The enterprise theory (also called the “benefit” theory) bases liability on the benefit to the employer’s enterprise provided by the employee’s conduct.
This view looks more to the purpose of the employee’s activity (i.e. whether it was intended to benefit the enterprise in some way).

Note:Fault on the part of the employer is irrelevant. However, the employee must commit a tortious act.

Scope of employment is a fact issue to be decided by the jury.

Policy: “The desire to include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise.”
Force the enterprise to internalize the losses to others caused by its operations
This will provide an incentive to take safety precautions.
Spread the losses via insurance the costs of the enterprise’s good and services.


Commuting to and from one’s home is not typically considered within the scope of employment.

Wong-Leong v. Hawaiian Independent Refinery, Inc (HIRI) (employee celebrating at work-sanctioned party gets drunk and kills 3rd party)
To recover under the respondeat superior theory, a plaintiff must establish:
a) a negligent act of the employee [a breach of duty] is a legal cause of plaintiff’s injury and
b) that the negligent act was within the employee’s scope of employment

In determining the scope of employment, the applicable test is whether the employee’s conduct was related to the employment enterprise or if the enterprise derived any benefit from the activity.
a) whether the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury
b) whether the employer’s risks are incident to the enterprise

Belanger v. Village Pub I (bartender over-serves patron who causes death)
A “master” is liable for the liable for the willful torts of his servant committed within the scope of the “servant’s” employment and in furtherance of his “master’s business.”

Respondeat superior focuses on the employee’s conduct, rather than the employer’s knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer’s consent or ratification is irrelevant. Even an innocent employer must compensate an injured party.

Page 14 Problem
Vicarious liability would exist, as employee is within the course and scope of employment. There also appears to be direct liability (negligent hiring, failing to follow their own policy). 

Buitrago v. Rohr (balloon advertiser injures 3rd party while doing contract work for Blockbuster)
Restatement (2d) of Agency Test §220 for determining whether an individual is an employee or an independent contractor (10 factors):
a) the extent of control which, by the agreement, the master may exercise over the details of the work [most significant in this case];
b) whether or not the one employed is engaged in a distinct occupation or business;
c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
d) the skill required in the particular occupation;
e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
f) the length of time for which the person is employed
g) the method of payment, whether by the time or by the job;
h) whether the work is part of the regular business of the employer;
i) whether or not the parties believe they are creating the relation of master and servant; and
j) whether the principal is or is not in business

This is a “multi-factor” test; any of the factors can be used. It is not essential that all factors point to “Yes” or “No.”

It is important to note policy again in this case. Costs should be attributed to the business that was in control and can adequately spread the costs. In this case, the advertising company was in control and could spread these costs to its customers.

Ermert v Hartford Insurance Co. (3rd party is injured at hunting friends lodge where business owner brings patrons)
A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of services is subject to the other’s control or right to control. R2A §220(1). This can include CEOs and Presidents of large corporations.)

When determining whether a particular accident may be associated with the employer’s business enterprise, courts often attempt to determine whether, considering the authority given to the employee, the employee’s tortious conduct was reasonable foreseeable. This foreseeability is different from the RPP test for negligence, and instead focuses on whether the particular accident is a part of the inevitable toll of a business enterprise.

The fact the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service.

The scope of risks attributable to an employer increases the amount of authority and freedom of action granted to the servant in performing his assigned tasks.

With intentional torts, the employee’s intentional tortious act must be within the scope of employment for vicarious liability to attach to the employer. However, with negligence, on the employee’s general activities at the time of the injury need be within the scope of employment.

05/28/09 – Bevins

Vicarious Liability: Considerations Regarding the Nature and Scope of Employment

Skinner v. Braum’s Ice Cream Store (employee gets something for boss on the way to work and injures 3rd party)
Generally, an employing, going or coming from work, is not considered to be within the scope of employment. 

Exceptions:
Liability is imposed upon the employer if the employee is rendering a service, either express or implied, to the employer with his/her consent. 

Also, if the trip involves an incidental benefit to the employer not common to ordinary commuting trips of the work force.

Coming and going to work is not covered by respondeat superior as there is already an insurance scheme in place for general automobile accidents.

Courtless v. Joullife (employee stops to get shocks for his work vehicle and injures 3rd party)
If it can be shown that an individual is an agent and if he is acting within the scope of his employment when he commits a tort, then the principal is liable for the tort as well as the agent.

“Scope of employment” is a relative term and requires a consideration of surrounding circumstances including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act.

When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficient substantial to be viewed as an integral part of the service itself.

Exceptions to the “Going and Coming” Rule

a) The “Special Hazards” exception to the “going and coming” rule applies whenever the employee’s travel to and from work subjects the employee to special hazards not common to other members of the traveling public. Distance alone, however, does not constitute a “special hazard.”  

b) If the Employer Compensates Employee for Time and Travel, the employer is likely to be held liable considering such factors as billing time for travel, recompense, mileage, etc.

c) The “Dual Purpose” exception applies where the employee, in addition to traveling to and from the employer’s worksite, also performs some additional service for the employer not common to an ordinary commute to work, this secondary (or dual) purpose may be sufficient to show

part of the principal. Have to look at the hierarchy or “people that count”

Complicity: R2T §909
Punitive damages properly awarded against employer or principal if:
a) the doing and the manner of act was authorized or
b) agent was unfit and it was reckless to employ or retain or
c) agent employed in managerial capacity and was acting within scope or
d) act was ratified or authorized. (seen in claims against insurance companies)

Independent Contractors

General Rule: A principal is not vicariously liable for the negligence of an independent contractor.
Policy: The principal is not in a position to control the manner in which the independent contractor performs the work.
Note: If the principal does attempt to control the work, this may result in direct liability because the principal in fact acted without due care in its supervision of the contractor.

Bagley v. Insight Communications (contractor who gets rod through eye; end up not holding Insight liable)
The long-standing general rule has been that a principal is not liable for the negligence of an independent contractor.
The exceptions to this rule are:
a) where the contract requires the performance of intrinsically [peculiar] dangerous work
b) where the principal is by law or contract charged with performing the specific duty
c) where the act will create a nuisance
d) where the act to be performed will probably cause injury to others unless due precaution is taken
e) where the act to be performed is illegal

The duties associated with these exceptions are considered non-delegable because the responsibilities are deemed “so important to the community” that the employer should not be permitted to transfer these duties to another.

Policy: Public policy concerns mitigate against permitting an employer to absolve itself of all further responsibility by transferring its duties to an independent contractor.

In these areas, the law expects the principal to take special precautions to prevent injury.

Examples: Maintaining a safe work place; properly maintaining an automobile

(Some jurisdictions) Negligent hiring of an independent contractor (R2T §411) does not constitute an additional exception to the general rule of non-liability for the hired of the independent contractor. Per this jurisdiction, negligent hiring could only serve as a basis for liability if one of the five factors were satisfied.

(Other jurisdictions) Negligent hiring of an independent contractor is an additional exception to the general rule of non-liability. [Exceptions have swallowed the rule.]
There mere fact that the work to be performed by an independent contractor involves some degree of special danger is not sufficient for the application of the “peculiar risk” exception. The “peculiar” risk or intrinsic risk is one that goes beyond the ordinary, well-understood, normal risks involved with the particular job.

Page 653 Problem
Questions:
1) Is the chef an employ or independent contractor?
R2A §220
It is necessary to determine who much control the owner of the restaurant had over the chef?
Was the chef operating under a distinct occupation?
How was he paid?
Parties’ belief in employment
Tools given to employee from employer
Length of time (regular occupation)
Part of regular business of ER

2) Vicarious liability for EE
Did the act of throwing the knife occur within the course and scope of employment?
Intentional tort
Did the motive have a dual purpose? Was there a benefit to an employer?
Was the activity within the time/place and/or part of the job?