Torts Jung Spring 2015
Vicarious Liability:
Respondeat Superior: Employers are vicariously liable for the torts of their employees within the scope of his or her employment, but not for the torts of independent contractors (i.e. master liable for tort of servant). Liable for an employee acting within the scope of his employment closely connected with the job and fairly and reasonably incident to it.
Employee: a person who works for compensation, whether direct or indirect, for another in return for stipulated services. An employee may work on an hourly, daily, or annual wage basis. The Employer has the right to control the work to be performed as well as the timing and means of accomplishing the work. Employer has control over the way the job is done.
Independent Contractor: a person who contracts to do a piece of work according to her or his own methods and is subject to another’s control only as to the end product or the final result of the work. Defined using the following factors:
i. Control (whether the employer or the worker has control over the work performed)
ii. Organization (whether the worker is integrated into the business)
iii. Economic Realities (whether the worker directly benefits from his or her labor).
Servant “Breaks Rules”: Even when servant is being negligent, master can be held at fault. Even when servant is violating rules of master and ends up doing something negligent, master can be found vicariously liable. This encourages master to have a strict hiring process.
Scope of Employment: Employers are only vicariously liable for torts committed by employees while acting within the scope of their employment. Conduct is within scope of employment if: (1) it is of the general kind the employee was hired to perform (2) it occurs substantially within the hours and ordinary spatial boundaries of employment (3) is motivated, at least in part, by purpose of serving employer’s interest. See Christensen v. Swenson (D vicariously liable when servant hit P in car on lunch break) [18]
Independent Contractors: One who contracts with an independent contractor may be liable for the contractor’s torts if there is apparent agency or the duty is non-delegable.
Apparent Agency: An apparent agency exists if all of the following elements are present: (1) Representation by the purported principal (2) detrimental Reliance on that representation by a third party (3) Change in position by the third party in reliance on the representation. See Rest. 2d §429 [] and Roessler v. Novak (D hospital liable when independent contractor doctor misdiagnosed P) [24].
i. Two possible rules
1. Reasonable belief
2. Acts that cause appearance of agency.
ii. Arguments for and against each rule
1. Precedent
2. Policy
iii. Level of control over work done by independent contractor should be used in weighing level of liability. The more control you have, the more likely you’ll be found to be liable.
Non-Delegable Duty: If the court determines that something is a non-delegable duty, than the employer will be held liable for the torts of the independent contractor. Duty is usually non-delegable when the activity in question is abnormally dangerous.
i. Peculiar Risk Doctrine (Ultrahazardous Activity):
1. Rest. 2d §416: Work dangerous in Absence of Special Precautions: independent contractor exception to respondeat superior. If u employ independent contractor to do work that employer should recognize will be dangerous to others unless special precautions are taken is still liable. You are vicariously liable, if contractor fails to exercise reasonable care, even if employer says he will in K.
2. Rest. 2d §427: One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
An employer or an independent contractor may be liable for his / her own negligence in selecting or training the employee / contractor.
What is the purpose/justification of tort law and tort liability?
No Liability: Damage covered by social insurance.
Fault-Based Liability: We want to attach consequences to careless behavior in order to promote safety. Compensates victims and deters tortfeasors.
Strict Liability: Compensate innocent victims of damaging acts.
Gregory: “one of Chief Justice Shaw’s motives underlying his opinion appears to have been a desire to make risk-creating enterprise less hazardous to investors and entrepreneurs.” [39]
Negligence liability is effectively based on public policy.
Change behavior/deter behavior
Purpose of law is corrective, not redistributive
Fairness/allocation
Compensation to make whole again
Vindicate the feeling of being wronged
Introductory Cases: [1]
Hammontree v. Jenner [3] Court of Appeal of California (1971)
Facts: D had epileptic seizure while driving and crashed into P’s shop.
Issue: Can strict liability be imposed on a driver who causes damages when suddenly stricken (non-negligent damages)?
Rule: No liability by automobile drivers unless there is negligence
Wrongful Death and Survival [18]
Wrongful Death Statue: Your death itself causes injury. Recovery against responsible party for injuries caused by death can be pursued by dependents of the deceased.
Survival Statue: If party dies, substitute the estate of a party and continue lawsuit.
What about punitive damages (i.e. pain and suffering damages, etc.) to deceased? Depends on jurisdiction.
Christensen v. Swenson [18] Supreme Court of Utah (1994)
Facts: D took lunch break from work and hit P on way back.
Issue: Can employer be held vicariously liable for tort of employee when tort was inflicted during employee’s lunch break, off company property?
Rule: Employers are vicariously liable for torts committed by employees while acting within the scope of their employment. Lunch breaks are within scope.
Analysis: To determine if an employee is action within scope of employment, check (1) Employee’s conduct must be of the general kind the employee was hired to perform (2) Conduct must occur substantially within the hours and ordinary spatial boundaries of employment (3) Conduct must be motivated, at least in part, by purpose of serving employer’s interest. [19-20]
Roessler v. Novak [24] Florida District Court of Appeal (2003)
Facts: P was misdiagnosed by D, an independent contractor at a hospital.
Issue: Can a hospital be held vicariously liable for the torts of doctors who are independent contractors?
Rule: Hospital can be held vicariously liable for torts of independent contractors if there is apparent agency.
Analysis: An apparent agency exists if all three of the following are present (1) A representation by the purported principal (2) A reliance on that representation by a third party (3) A change in position by the third party in reliance on the representation.
Negligence Summary:
Prima Facie Case: In a prima facie case for negligence, the P will have to prove:
Duty: A duty was imposed by law to conform to a specific standard of care.
Breach: That the D breached that duty.
Causation: That the D was the factual and proximate cause of the injury.
Damages: That the P suffered actual damages as a result of D’s conduct.
Duty: [132]
General Rules:
No Affirmative Duty Rule: There is no legal duty to aid or protect others, even when the actor realizes an action on his part is necessary for another’s aid or protection, unless a special relationship exists.
i. Rest. 3d §37. “…an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other.”
ii. Harper v. Herman (P suddenly jumps off D’s boat, hits bottom, and breaks his neck. D not liable. No duty to act b/c no special relationship) [134]
iii. Policy: People should be responsible for their own care.
Risk Creation Rule: Participation in risk creation activities creates a duty for you to avoid injuring others.
i. Rest. 3d §7. Duty: (a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm. (b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the D has no duty or that the ordinary duty of reasonable care requires modification.
Establishing Duty: Existence of duty is a question of law for the judge to decide per statutes, rules, and common law precedents. [143]
i. Limiting Liability – Duty & Proximate Cause: Proximate cause analysis should be used to bar liability for unforeseeable harm. Duty analysis should be used to impose policy limits on liability for harm that is foreseeable [183n9].
ii. Foreseeability: The Third Restatement criticizes the use of foreseeability in the duty determination. Foreseeability of the risk is a matter for the jury in deciding breach. Once duty is assigned, than foreseeability can be used to determine liability. Not other way around. [155n1]. But
gligence. See Harper v. Herman [136]
Limited Liability & Public Policy: Actor normally has duty to exercise reasonable care when the actor’s conduct creates risk of harm. But in exceptional cases, for policy reasons, court may limit or deny liability by removing duty to a particular class of cases [175]. Rest. 3d §7(b).
Crushing Liability: In order to contain liability to a manageable level, courts will sometimes limit liability. Public policy is used to push for no duty. “General Duty to All” factors (above) used to push for duty. But courts vary in how far they will restrict circle of duty. If you act in a way that creates risk, you may be liable for…
i. No Duty: Some courts will deny duty to third parties when D has no reasonable opportunity to control tortfeasor. Least Duty – K Relationships: D is liable for P’s injury only if P-D were in K and P relied on K. See Strauss v. Belle Realty Co. (D power utility not liable for P’s injury related to grossly negligent power outage b/c no K relationship) [176]
ii. Some Duty – Proximate Cause: D’s act must be proximate cause of injury to non-K 3rd parties where reliance and injury are “direct and demonstrable, not incidental or merely collateral.”
iii. Most Duty – Foreseeable Victims: D is liable to anyone who might foreseeably be harmed by D’s actions. See MacPherson v. Buick Motor Co. () [].
Social Hosts & Alcohol: Social hosts have no duty to third parties injured by their intoxicated guests (minors or otherwise). See Reynolds v. Hicks (D bride/groom not liable when cousin-minor got drunk at their wedding and got into car accident with P) [183].
i. Injury on Premises: The no duty rule applies even if the injury happens on their social hosts’ premises. Policy: Social hosts are not as capable of handling the responsibilities of their guests’ alcohol consumption as are commercial vendors. Additionally, whenever a court has found duty in these cases, legislatures are quick to restore immunity. [187n4]
Dram Shop Acts: Most states have enacted dram shop acts that create duty to 3rd parties injured by intoxicated patrons from commercial enterprises. But they are split on the level of duty required. [187n6]
i. Knowledge Required: Some courts require knowledge by the dram shop that the patron will be driving a motor vehicle. See Delta Airlines, Inc. v. Townsend (Airline had no liability b/c they didn’t know if passenger was driving home) [188n6].
ii. Strict Liability: Other courts throw out all proximate cause claims and apply liability for all harms caused by intoxicated patrons, even injury caused by criminal conduct!
Negligent Entrustment: You are liable if you supply (directly or through 3rd party) something to an incompetent (youth, inexperience, retard) which you know or have reason to know will be used in a manner involving unreasonable risk of harm. Restatement 2d. §390 [190].
i. Investigation: Supplier has no duty to conduct investigation to ensure person is competent.
ii. Manner of Supply: It doesn’t matter if you supply directly, or simply aid in the acquisition. Also, it doesn’t matter if the entrustment was a gift or for a consideration (rent/sell). [190]
iii. Financial Aid: Courts are split on how to apply when all D did was supply financial aid to help purchase item. See Vince v. Wilson (D grandma liable for injury to P hit by her incompetent grandnephew with car she helped buy) [188]
iv. Key in the Ignition: If you negligently let someone steal your car (e.g. by leaving key in ignition), some courts will hold you liable for resulting harm. [192n7]
v. Guns: If you sell guns, you have no duty to V’s injured by guns. But if you give/sell guns to incompetents (e.g. drunks), you can be liable under negligent entrustment. [193n8]
