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Torts II
University of Dayton School of Law
Cochran, Rebecca A.

Torts II Outline- Spring 2013- Cochran
When one becomes liable for the tort of another, the former is vicariously liable
·                     Employer= an employer is normally vicariously liable for torts committed by employees
·                     Employee= A will be deemed B’s employee if B gets to control the details of how A does his work
·                     Scope of Employment= the employer is only liable for torts committed by the employee during the scope of the employment.  Normally this means that there will be liability only when the employee is acting in furtherance of the employer’s business interests
·                     Independent Contractors= normally a person who engages an independent contractor is not liable for torts committed by the contractor
                                              i.Unusually Dangerous= there is an exception if the work to be done by the contractor is unusually dangerous, then the person engaging the contractor will be VL
                                             ii.Distinction between Employee and Independent Contractor- employee is subject to detailed control of the employer, independent contractor  is hired to produce a certain result but is not subject to detailed control
·                     Joint Enterprise= when 2 or more people engage in an activity ‘in concert’ each can be held liable for the other’s torts
1.    Nature of Doctrine- in some situations, the tortious act of one person may be imputed to another, because of some special relationship between the two.  As a result, the latter will be held liable, even though his own conduct may have been completely blameless.  The most frequent situation in which VL exists is that involving tortious acts committed by an employee ( can exist in an independent contractor situation or joint enterprise)
2.    Respondeat Superior- if an employee commits a tortious act during the scope of employment, his employer will be jointly liable. (Let the person higher up answer)
a.    Rationale for doctrine- incidents that arise should be the cost of doing business (deep pockets)- employee is frequently judgment-proof
b.    The doctrine applies to all torts, including intentional torts and one where SL exists
3.    Scope of Employment (SOE)- generally, an act is within the SOE if it is done with the intent to further the employer’s business interest even if the means chosen were indirect, unwise, or forbidden
EX:  Fruit, an insurance salesman, attends a convention in AL run by his employer, the D insurance company.  Fruit is encouraged to mix freely with out of state insurance experts who are also at the convention in order to learn about sales techniques.  One night, after the day’s convention activities are over, he goes to a bar in order to look for some out of state colleagues, sees that they are another there, and heads back to his hotel.  En route, he N collides with P.
Held= Fruit was acting within the SOE at the time of the accident.  In going to the bar, he was motivated at least in part by a desire to socialize with these experts, whom he had been encouraged to get to know.
a.    Trips From Home- most courts hold that where an accident occurs when the employee is travelling from her home to work, she is not acting within the SOE- this is often base

ployer’s business interest- thus an employee who smokes on the job or is on her way to the toilet would probably be held by most modern courts to be engaged in an activity so foreseeable that it was done within the SOE
d.    Intentional Torts- the master is held liable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master’s business
§ 2.04 Respondeat Superior
An employer is subject to liability for torts committed by employees while acting within the scope of their employment.
§ 7.03 Principal’s Liability in General
Comment 2 When work requires specialized skills or equipment or requires that an actor perform a task on a less than full time basis, it is not unusual that the actor who performs the work is employed by a firm that contracts to provide the actor’s services to another firm.
When an actor negligently injures a third party while performing work for the firm that has contracted for the actor’s services, the question is whether that firm (the “special employer”) or the initial employer (the general employer), or both, should be subject to liability to the third party.
Liability should be allocated to the employer in the better position to take measures to prevent the injury suffered by the third party. [“borrowed servant” rule]