TORTS II
Professor Field
Summer 2015
VICARIOUS LIABILITY: Where a target D who is otherwise without fault is held liable for the tortious acts of another, based on the relationship between the tortfeasor and the defendant.
· RESPONDEAT SUPERIOR (let the superior answer): (employer/employee relationship) Employer is vicariously liable for torts committed by EEs acting within the scope of their employment even if the employer is WITHOUT fault.
o 2 Theories of Respondeat Superior (to determine if EE is within scope of employment):
§ Control (activities) Theory: liability based on the employer’s right to control and direct the activities of the EE. Focuses on what the EE was doing at the time of the negligent conduct.
· Was the activity within the scope of employment?
§ Enterprise Theory: liability based on the benefit to the employer’s enterprise provided by the EE’s conduct. Focuses on the purpose of the EE’s actions.
· Were they, at least in part, to further some legitimate purpose or motive of the employer’s business?
o Analyzing Respondeat Superior
§ Test:
1. Direct liability (EE)? (Was a tort committed?)
2. Was actor of tort an EE or independent contractor (IC)?
o EE definition: person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control. (RST Agency §220)
o Key factors to determine EE v. IC: (Really Don’t Understand Someone Who Lets People Eat People’s Bodies)
1. right of control (MOST IMPORTANT)
2. distinct occupation or business
3. work done by unsupervised specialist or supervised EE
4. skill required (higher skill – higher likelihood of IC)
5. who supplies the instruments, tools, and the place of work
6. length of time person is employed
7. method of payment (compensation) (lump sum vs. salary)
8. whether the work is a part of the employer’s regular business
9. whether the parties believe they are creating the relation of EE and employer (LEAST IMPORTANT FACTOR)
10. whether the principal is a business
o IF independent contractor, NO liability. UNLESS, it is an IC liability exception:*ask for examples (INNUI)
o Intrinsically dangerous work (ex: blasting)
o Legally or contractually non-delegable duty (gov. street paver example)
o Act will create nuisance (interference with the use or enjoyment of another’s property ex. Junk yard and speaker system next to hospital))
o Unless special precautions taken, performed act will probably cause injury (ex. power line lifter)
o Illegal act required (ex. Hire hitman)
o (Policy) RST (Second) Torts § 411: Negligence in Selection of a Contractor: An employer is subject to liability to physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor. (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third parties.
3. Was EE acting within the scope of employment? (analyze theories control/enterprise)
o Limitations:
i. Going and coming rule
1. In general, employer is not liable if EE is going or coming from work.
a. Exceptions: (HCD)
i. Special hazards to EE
ii. Compensation for time and travel (while going and coming)
iii. Dual purpose: EE performs additional work not common or ordinary to normal work and benefits the EE and employer (EMR plays for car, EE stops on way to work to get oil change)
iv. *Special Errand* (ex-stop by bookstore)
ii. Frolics and detours
1. Frolic: EE departs from course and scope of employment to a significant degree in pursuit of own interests.
a. Significant degree: deviation is marked, unusual, and unrelated to employment
b. NOT within scope of employment so no vicarious liability.
2. Detour: less serious deviation from the course and scope of employment
a. EE is within the scope of employment and potential vicariously liable.
b. Minor deviation: foreseeable, slight, not unusual and sufficiently related to employment
3. Frolic and return: a frolic is over when the EEs own business is completed and returns to the business of employer
a. Usually EE is not back within the scope of employment until back on the authorized route.
iii. Horseplay: worker’s comp. similar to frolic (outside of scope and will not insure)
1. Factors:
a. Extent and seriousness of horseplay
b. Whether activity was mixed with performance of duty or abandonment of duty
c. Extent that horseplay had become accepted at work
d. Whether horseplay had become regular incident of employment
e. What was the risk of injury?
· INTENTIONAL TORTS
o RST (Second) Agency § 228 (1)(d):
§ (1
domestic –
o Harm results from a dangerous propensity
§ ABNORMAL to its class AND
§ Possessor knows OR has reason to know of that propensity
2. Causation and DAS
· Abnormally Dangerous Activities
o R2T § 519: General Principal
§ STRICT LIABILITY for abnormally dangerous activity
§ LIMITED to the kind of harm that makes the activity abnormally dangerous
o Factors to determine if activity is abnormally dangerous: (R2T § 520)
§ Existence of a high degree of risk of some harm to the person, land, or chattels of others
§ Likelihood that the harm that results from it will be great
§ *Inability to eliminate the risk by the exercise of reasonable care* (best factor to determine)
§ Extent to which the activity is not a matter of common usage
§ Inappropriateness of the activity to the place where it is carried on, AND
§ Extent to which its value to the community is outweighed by its dangerous attributes.
PRODUCTS LIABILITY: not a cause of action in and of itself. The cause of action must arise from strict liability, negligence, or warranty.
· *Negligence: (HISTORY IS IN BOUNDS AND THE IDEA THAT NEGLIGENCE IS A CAUSE OF ACTION FOR PRODUCT LIABILITY. IF YOU CAN PROVE NEGLIGENT BEHAVIOR YOU CAN HAVE NEGLIGENT CAUSE OF ACTION FOR PRODUCTS LIABILITY)
o Arose from the abolishment of privity
§ Privity of contract – once, only liable to direct purchaser. Now, to any foreseeable user.
· Exception to privity: Imminent danger – mislabeling drugs and wooden wheels (negligent in inspection)
· Current: a manufacturer owe a duty of care to all those who may foreseeably be injured by its products.
§ PRIVITY DIED AT MACPHERSON. P JUST HAS TO BE A FORESEEABLE END USER.
· Warranty:
o Analysis:
§ Does a warranty exist?
· Express or implied?
· Has it been modified or excluded?
· What does it cover?
§ Has the warranty been breached?
o Express Warranty (seller not a merchant)
§ UCC § 2-313 (2): Not necessary to use words “warrant or guarantee” or to have intent to make a warranty, but affirmation of value or opinion DO NOT create warranty.
· Affirmation of fact or promise (ex: This will do x. “I promise this will not catch on fire”)
· Description of the goods (doesn’t meet description)
· Sample or model (If item bought doesn’t do what the sample or model did)
§ Advertising CAN create express warranty
