Torts II Outline

Torts 2
Bauman
Spring 2017
 
Brief Overview
Know all the different elements of all the various torts throughout the semester
Ex: Privacy, 4 types of privacy. Know all elements of all 4 privacy types
Final exam will reflect this ^
Final exam consists of one large essay over products liability
Rest of final exam is 70 multiple choice
Vicarious Liability
Basics
If a defendant is held liable without fault, what is the justification? To put it another way, how can that be just? Courts appeal to public policy.
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: An employer may be liable for the negligent acts of its employees that occur within the course and scope of their employment
Direct Liability – Company itself was negligent
Vicarious Liability – Employee is negligent & Employee was within scope of employment
Plaintiff must prove both elements of vicarious liability to hold employer liable
Jury verdict needs to find all 3 elements (Employee is negligent, employee was within scope of employment, and company itself was negligent)
Can corporation be subjective through punitive damages?
Scope of Employment: Must determine whether the conduct of the employee was within the scope of employment at the time of the injury
Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment
Control theory to determine SOE
Finds liability whenever the act of the employee was committed with the implied authority acquiescence or subsequent ratification 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 the employer directed the employee to do it?
More narrow scope of employment
Enterprise theory to determine SOE
Finds liability whenever the enterprise of the employer would have benefited by the context of the act/conduct of the employee
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)
Broadest scope of employment
Ermert v. Hartford Insurance Co.
Trial judge found that the hunters constituted a “somewhat loose unincorporated association” but they were not a partnership because they were not organized for profit. No vicarious liability arising solely out of membership in such an organization
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 loss via insurance and the costs of the enterprise’s goods and services
Going and Coming Rule
The commute to/from work is not (generally) within the course and SOE
Exceptions:
Special Errand: Liability if employee is rendering a service (makes an off-premises journey), either express or implied, to employer with his consent/demand
Special Hazard: Liability where the travel to the place of work creates a special hazard or involves special risk, or is part of the job
If injured on job, workers compensation would kick in. Employer would put in money into this type of insurance and in turn would be come immune from suit
Before works comp, employees couldn’t sue fellow employees dues to the special employee doctrine and would not receive money from employer
Frolic & Detour
Frolic: Occurs when the employee departs from the course and scope of employment to a significant degree in pursuit of his own interests
Frolic and Return
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 SOE until actually back on the authorized route
Faragher v. City of Boca Raton
Employees were on a frolic when they created a hostile working environment
Detour: A less serious deviation from the course and scope of employment but still in SOE
The employer is vicariously liable for torts committed during detours, but not those committed during frolics
Employer-Employee relationship
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 within the course and scope of employment, but NOT for torts committed by an independent contractor
Restatement of Agency Test (factors)
Extent of control
Distinct occupation
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?
Dual Purpose Test
Where the actual responsibilities of an employee’s employment are such that it is otherwise foreseeable by the employer that the employee might commit an intentional tort even while acting within the “scope of employment”
Liability even for an employee’s intentionally tortious acts can still be imputed vicariously to the employer if at least part of the employee’s actions were intended to further the employers business
…even if the employees actions exceeded the scope of express instructions by the employer
If an employee commits an intentional tort with the dual purpose of furthering the employee’s interest and venting personal anger, respondeat superior may lie; however, if the employee acts purely in his own interest, liability under respondeat superior is inappropriate
Intentional Torts
The employer is vicariously liable for the intentional torts of employees 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
 
Liability
The test of liability is not the motive of the employee in committing the act complained of, but whether that act was within the scope of the duties of employment and in the execution of the service for which he was engaged
Punitive