Torts II Outline

Torts II Bauman Spring 2015
Vicarious Liability
Fault of the defendant is no longer the basis of liability
The defendant is held liable for a tort committed by another
What justifies imposing liability in the absence of fault?
Look first at the relationship between the defendant and the actual tortfeasor.
Respondeat superior
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.”
The policy basis for imposing this liability may limit the situations in which it is available.
Control Theory
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.
Was the employee engaged in the activity because the employer directed the employee to do it?
Enterprise Theory
Also called benefit theory
Bases liability on the benefit to the employer’s enterprise provided by the employee’s conduct
Looks more to the purpose of the employee’s activity
Was it intended to benefit the enterprise in some way
Policy bases
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 and the costs of the enterprise’s goods and services.
Who is an employee?
An employee must be distinguished from an independent contractor.
The general rule (which has many exceptions) is that the employer is vicariously liable for torts committed by an employee within the course and scope of employment, but NOT for torts committed by an independent contractor.
Restatement of agency test
Extent of control.
Distinct occupation or business?
Kind of occupation.
Skill required.
Who supplies the instrumentalities, tools and place of work?
Length of time of employment.
Payment:by time or by job?
Work part of regular business of employer?
Parties' belief as to type of relationship?
Is principal in business?
What is the difference?
The distinction is drawn based on the 10 factor test of the Restatement of Agency.
The most important of these factors are the extent of the control over the details of the work exercised by the employer, and whether the work done by the agent represents a trade or business distinct from that of the employer.
Direct Action State
In tortfeasor, one can sue the liability insurance company as liability defendant.
EX: Louisiana
Scope of Employment: basic
The going and coming rule: the commute is not (generally) within the course and scope of employment
Exception: given a task to complete on the way to or from work
Exception: travel to the place of work creates a special hazard or involves special risks, or is part of the job
Frolics and Detours
A “frolic” occurs when the employee departs from the course and scope of employment to a significant degree in pursuit of the employee’s own interests.
A “detour” is a less serious deviation from the course and scope of employment.
The employer is vicariously liable for torts committed during detours, but not those committed during frolics.
Frolic and Return
A frolic is a deviation from the course and scope of employment on business of the employee’s own.
The frolic is over when the employee’s own business is completed and the employee returns to the business of the employer.
Usually the employee is not back within the scope of employment until actually back on the authorized route.
Faragher v. city of Boca Raton
Statutory rather than common law analysis
What is the role played by scope of employment in this context
What responsibility on the employer for placing the supervisor in a position from which he could engage in harassment?
What defenses available to the employer
Intentional torts
The employer is vicariously liable for the intentional torts of employee if;
The tort is in the scope of the employment and in furtherance of the employer’s business; and
The tort was foreseeable in view of the nature of the employment
Some courts impose vicarious liability if the tort occurred during the performance of the employee’s duties for the employer.
Restatement (2d) Agency § 228
General Statement
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occu