Torts II Outline

TORTS II OUTLINE
South Texas College of Law Houston
PROFESSOR BAUMAN
SPRING 2017
 
 
Vicarious Liability
A Transition from Fault-based liability to Strict Liability: Legal Responsibility as a Policy Issue
Vicarious Liability
Refers to any number of different situations in which the tort liability incurred by one party (“active” tortfeasor) is imputed to another party (the “responsible” tortfeasor).
The ∆ is held liable for a tort committed by another (fault of the ∆ is no longer the basis of liability).
Respondeat Superior
Let the Superior Respond (by paying for the damages)
Holds that an employer (ER) is liable for torts committed by an employee (EE) while the employee was acting within the “course and scope of employment” (C&S of E).
Based upon the existence of some type of “special relationship” between the two tortfeasors.
Form of secondary liability.
The policy basis for imposing this liability may limit the situations in which it is available.
Control Theory
Bases the imposition of liability on the ER's rights to control & direct the activities of the EE.
Looks @ what the EE was doing and asks whether it was a part of the EE's job.
Was the EE engaged in the activity because the ER directed the EE to do it?
Fruit v. Schreiner
2 separate basis of liability that are being asserted against the ER.
Direct Liability à ER itself directly negligent
Vicarious Liability à (1) EE is negligent and the employer is in turn responsible; and (2) the EE's act was within the C&S of E (BOTH (1) & (2) must be shown for an employer to be vicariously liable).
“desire to include in the costs of operation inevitable losses to third person incidents to carrying on an enterprise, and thus distribute the burden among those benefited by the enterprise” à the cost of doing business.
Acts of the EE need to be so connected to his E as to justify requiring the ER bear the loss.
Enterprise Theory
Also called the “benefit” theory, bases liability on the benefit to the ER's enterprise provided by the EE's conduct.
Looks more to the purpose of the EE's activity (i.e., whether it was intended to benefit the enterprise in some way).
Wong-Leong v. Hawaiian Independent Refinery, Inc.
Note: Employer granted SJ by trial ct.
Issue: Sufficient evidence to submit to jury?
What must π show to hold employer liable?
As to the EE's conduct? à was in fact negligent.
As to relationship to the job? à C&S of E.
Was drinking beer within the course and scope of employment? Seriously? NO.
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 cost of the enterprise's goods and services.
Note 3: pg. 577 à imposing liability without fault.
Employee-Employer Relationship
Who is an “Employee”?
An EE must be distinguished from an independent contractor.
General Rule: (which has many exceptions) is that the ER is vicariously liable for torts committed by an EE w/in the C&S of E, but NOT for torts committed by an independent contractor.
Restatement of Agency §220: For determining whether a party is an independent contractor or an employee à multifactor test, no one factor is decisive (see Buitrago v. Rohr).
Extent of control
Distinct occupation or business?
Kind of occupation.
Skill required.
Who supplies the instrumentalities 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 Between an Employee and an Independent Contractor?
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 ER, and whether the work done by the agent represents a trade or business distinct from that of the ER.
Was the Employee Acting Within the “Scope of Employment”?
Course and Scope of Employment: “Going and Coming Rule” – commute is not generally within the c/s of employment.
B/C this is cost incurred by the individual's decision to drive a vehicle and accidents are normally handled by auto insurance.
Injured on the job à get compensation from worker's comp. Off the job à not eligible.
Worker's comp. takes you outside the Tort world completely. It takes an insurance scheme for compensating injured employees while on the job.
NOTE: manufactures of machines that cause injuries to employees while on the job are not protected under the same worker's comp. set up. This becomes an issue that is addressed under products liability.
Exceptions
EE given a task to complete for the employer on the way to/from work (dual purpose) à should be ER directed.
Example: stopping to get donuts for everyone at the office would not count as an employee related task. Now if the employer tells you to do it then you would be within the exception.
Travel to the place of work creates special hazard or involves special risks, or is part of the job.
“Frolics” vs. “Detours”
Frolic
When the EE departs from the C&S of E to a significant degree in pursuit of the EE’s own interests.
NOT w/in the C&S of E. ER NOT vicariously liable.
Serious deviation from the EE's business.
Example: Homer stopping at Moe's for a pint.
The frolic is over when the EE's own business is completed and the EE returns to the business of the ER.
Usually the EE is not within the S of E until actually back on the authorized route.
Detour
Less serious deviation from the C&S of E.
ER IS vicariously liable for torts committed.
Faragher v. City of Boca Raton
Statutory rather than C/L analysis. Still relates to the C/L notion of frolics & detours.
Employer's Vicarious Liability for International Torts
See Sunseri v. Puccia; Plummer v. Center Psychiatrists, LTD.
ER is VL for the intentional torts of EE if:
Tort is in the S of E and in furtherance of the ER's business; AND
Tort was foreseeable in view of the nature of the employment.
Dual Purpose Doctrine
Even if the EE was motivated by some personal interests, if EE is at all engaged in the furtherance of ER’s business, the ER may be held liable.
Some courts impose VL if the tort occurred during the performance of the EE's duties for the ER.
VL for Punitive Damages
Rest. (2d) of Agency §228
General Statement
Conduct of a servant is within the scope of employment if, but only if:
it is of the kind he is employed to perform;
it occurs substantially within the authorized time and space limits;
it is actuated, at least in part by a purpose to serve the master; and
if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
Punitive Damages (PD)
Require some form of “malice” to award. Where the ∆'s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated w/ crime.
PDs are to be applied to deter and punish the bad conduct.
What is the meaning of “malice”?
How does the Brueckner court define malice here?
Truly reprehensible conduct
Can an omission to act ever be malicious? What would the π have to show in this case to be entitled to punitive damages?
Must be proof of the ∆'s bad spirit and wrong intention.
Approach to Corporate PDs: Complicity
Rest. 2d, §909
PDs properly awarded against employer of principal if:
the doing and the manner of act was authorized, or
agent was unfit and it was reckless to e