Torts II Outline

Note to Reader:  The first 32 pages are the main outline that follows Field’s coverage of the Bauman text. Following the main outline is a condensed version I used for last-minute test prep
TORTS II OUTLINE
PROF. FIELD – SUMMER 2010
 
I.      Vicarious Liability Def: where a target defendant – who is otherwise without fault – is held liable for the tortious acts of another.- Liability is based upon the relationship between the party committing the tort and the defendant
 
A.      Respondeat Superior – “let the superior answer”
1.       Employer’s vicarious liability (without fault) for torts committed by employees.
2.       Analysis of Respondeat Superior Problem:
a.       Direct Liability – has there been a tort committed?
 
b.      Is the tortfeasor an Employee or Independent Contractor?
i.         Servant – Def [R2T§220(1)]: a 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.
ii.       Ten Factor Test to determine if employee [R2T§220(2)] ·         Right of control **
·         distinct occupation or business
·         work done by unsupervised specialist or supervised employee
·         who  supplies the instrumentalities, tools, and place of work
·         Skill required
·         Length of time person is employed
·          method of payment,
·          Whether work a part of the employer’s regular business
·         Whether parties believe they’re creating the relation of ER/ee
·         Whether the principle is or is not in business.
 
iii.      If Independent Contractor, NO vicarious liability for employer, Unless one of 5 EXCEPTIONS
·         Employer’s liability: Employer chooses contractor that he knows will not do work safely
·         Non-delegable duty: can be created by statute, CL, or contract
¨       Ex.: architect liable for faulty masonry installed by indep. Contractor, b/c had non-delegable duty to meet building code specs.
·         Inherently dangerous activities
¨       Ex.: gas company liable for negligent work of indep. Contractor b/c propane gas is inherently dangerous substance
·         Act will create a nuisance
·         Unless special precautions taken performed act will probably cause injury
·         Illegal act required
iv.     PP: Principle should supervise or keep track of its independent contractors
 
c.       Was employee acting within SCOPE OF EMPLOYMENT? (Fact question)
i.         Enterprise Theory: Whether employer would have benefitted from act of employee.
·         Focuses on PURPOSE of employee’s action… whether act was intended to benefit enterprise / employer in some way
·         Hawaiian after work partygoer gets in wreck… since company benefitted from morale boost of parties, worker was in scope of employment when he got drunk.
ii.       Control Theory: bases liability on employer’s right to control and direct the ee’s activities
·         Looks at what the ee was doing and asks whether it was part of the ee’s job.
iii.      Limitations
·         Going and Coming Rule: Employer usually NOT liable if ee is going to or coming from work
¨       Exceptions:
°         “Special Errand” – off premises journey may be brought under SOE if the trouble and time of making the journey, special inconvenience, hazard, or urgency of making it is itself sufficiently substantial to be viewed as an integral part of the service / work.
°          Special Hazards – when the ee’s travel subjects him to special hazards not common to other members of the travelling public (ex. transporting explosives. long distance does NOT count)
°         Compensation for time and travel – if ee is being paid, that makes it part of the job
°         Dual Purpose – When ee, in addition to traveling to and from work, also performs some add’l service for the ER not common to ordinary work commute, the secondary or “dual” purpose may be sufficient to justify finding that ee is acting w/in scope… almost same as / overlaps w/ “special errand”
·         Frolic and Detour
¨       Frolic – the ee departs from the course and scope of employment to a SIGNIFICANT degree in pursuit of ee’s own interests
°          Employer NOT vicariously liable
¨       Detour – A less serious deviation from the course and scope of employment
°         Employer IS vicariously liable for torts committed during detours
¨       Frolic is over when the employee’s own business is completed and the employee returns to the business of the employer
°         Usually NOT back w/in scope UNTIL actually back on authorized route
·         Horseplay (similar to frolic) courts look at:
¨       Extent and seriousness of horseplay
¨       Whether activity was mixed w/ performance of duty or abandonment of duty
¨       Extent that horseplay had become accepted at work
¨       Whether horseplay had become a regular incident of employment
¨       What was the risk of injury
 
iv.     Vicarious Liability & Intentional Torts
·         If an EE commits an Intentional tort w/ dual purpose of furthering the ER’s interest and venting personal anger, Respondeat Superior may lie; however, if the ee acts purely in his own interest, liability under RS is inappropriate
¨       An ER is liable for intentional torts of an ee which are not unexpectable (FORESEEABLE) in view of the ee’s duties. (even use of excessive force may be anticipated)
¨       The fact that the ee acted in an outrageous manner or inflicted a punishment out of proportion to the necessities of his ER’s business is evidence that the ee departed from scope of employment
¨       Also, an ER may be liable under Negligence (aside from RS) for breach of duty to prevent EE from physically harming patrons on ER’s premises, and the ER knows or should know that control over the ee is necessary and the ability to control exists
·         Rest. Agency §245 – Use of Force – Master is subject to liab for int. tortuous harm by an servant done in connection w/ employment, although conduct unauthorized, if the act was not unexpectable in the view of the duties of the servant
 
v.       Vicarious Liability for Punitive Damages
·         Punitives require some form of malice by defendant
¨       Even in contect of vicarious liability, punitive are permitted only where a defendant’s wrongdoing have been intentional and deliberate à KEY: establish the principle, not just the agent, acted w/ malice
·         “Complicity Rule” [R2T§909]: Majority (32 jsds)
¨       Punitives can be awarded b/c of an act by an agent if, but only if:
°          The principal or managerial agent authorized the doing & manner of the act, or
°          Agent was unfit and the princ. or mgr’l agent was reckless in employing or retaining him
°          The principal or managerial agent participated in the action and was acting w/in scope
°          The principal or mgl agent ratified or approved the act
·         “Vicarious Liability Rule” (minority – 14 jsds): ER liable if ee acted w/in SOE.
 
B.      Joint Enterprises, Joint Ventures and Partnerships
1.       Joint Venture: occurs where two or more persons combine to engage in a single business enterprise for profit, such that liability is imputed to all participants.
a.       Elements:
i.         Agreement
ii.       Common Purpose
iii.      Community of Pecuniary Interest (business goal/ $)
iv.     Equal Right to a voice PLUS equal right of control over the instrumentality causing injury
b.      Duty b/t members AND to third parties
2.       Joint Enterprise
a.       Elements: (same as joint venture, except not for profit)
i.          Agreement
ii.       Common Purpose
iii.      Community Interest (NOT business / $)
iv.     Equal Right to a voice PLUS equal right of control over the instrumentality causing injury
b.      No duty b/t members; only to 3rd parties
 
II.  STRICT LIABILITY
A.      General
1.       SL = Liability w/o fault à removes duty & breach analysis… still have to show causation, injury, & DAS
2.       Liability exists despite using all possible care
3.       Defenses
a.       Comparative fa