Torts II Outline

Torts II Outline – Long – Spring 2014

1) Vicarious Liability

a) Respondeat Superior

i) Liability without Fault

(1) Agent must be an employee

(2) Tort must have occurred w/in scope of employment

ii) Policies Underlying Theory

b) Scope of Employment

i) Christensen v. Swenson

(1) Guard expected to eat lunch on the clock; in wreck on way to pick up lunch

(2) Issue – when does an employee act w/in scope

(3) 3 part test same as restatement

(a) conduct is kin employee hired for

(b) w/in hours and bounds of employment

(c) motivated by purpose of serving employer’s interest

(4) here – employer expected/encouraged behavior, provided no unpaid breaks -> of kind she was hired to perform b/c employer made it so w/o breaks

(a) also increase speed and efficiency for employer

(b) result was enough evidence to get to the jury

(c) element of foreseeability – employer could foresee this occurrence b/c of the way job was constructed – if they didn’t want liability, construct job differently

(5) each case is highly fact specific

ii) R2d § 228 – Scope of Employment

(1) Conduct of servant w/in scope of employment if and only if

(a) It is the kind he is employed to perform

(b) It occurs substantially w/in the authorized time and space limits

(c) It is actuated, at least in part, by a purpose to serve the master

(2) And conduct of a servant is not w/in scope if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master

iii) Considerations

(1) Time and Space

(2) Kind of Conduct

(3) Purpose or Motive

(4) Coming and going rule – injuries that occur coming or going to work are not w/in the scope of employment

iv) Intentional Torts

(1) Some courts place intentional torts outside scope of employment – not always right -> think of a fight with a club bouncer who uses an extra kick

(2) §228(1)(d) – if force intentionally used by servant against another, the use of force is not unexpectable by the master

c) Who is an Agent or Employee?

i) Independent Contractors v. Employees

(1) Roessler v. Novak

(a) A principal may be held liable for the acts of an agent if the principal permits the appearance of authority in the agent

(b)3 factors

(i) represented by the purported principal

(ii) reliance on that representation by the 3rd party

(iii)change in position by 3rd party in reliance on that representation

(c) representation of the principal is the key, not representation of the agent

(i) ex – hospital advertising radiologist as part of the hospital, admitted from ER and sent to “their radiologist”

(2)R2d of Agency § 220 – Definition of Servant

(a) In deciding if one that acts for another is a servant or independent contractor, the following among others are considered

(i) Extent of control by which the master may exercise control over the details of the work

(ii) Whether or not the one employed is engaged in a distinct occupation or business

(iii)The kind of occupation, with reference to whether in the locality the work is usually done under the direction o the employer or by a specialist without supervision

(iv)Skill required in the particular occupation

(v) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work

(vi)Length of time for which the person is employed

(vii) Method of payment, whether by time or by the job,

(viii) Whether or not the work is part of the regular business of the employer

(ix)Whether or not the parties believe they are creating the relation of master and servant

(x) Whether the principal is or is not in business

(3) Kirsten v. Van Grack

(a) Key – whether employer has authority to control how employee does the job -> do this time and way

(b) Key – right of the employer to control/direct the servant, even if not exercised in practice

(c) Ex. why independent contractor – could turn down jobs, control how and when process was served, paid by job, supplied own instrumentalities (office, etc)

ii) Apparent Authority

iii) Non-delegable duties

(1) Employer can still be held liable, even if person is still an independent contractor

(2) In above case – delegated only the task while the principal still owned the duty to serve process which can’t be delegated

(3) Non-delegable – when duty is so important to the community that the employer shouldn’t be permitted to transfer it

(a) Specifically imposed by statute

(b) Activities that are inherently dangerous or pose a peculiar threat

2) Strict Liability

a) Shift From Strict Liability to Fault

i) R1st § 519

(1) On who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm

(a) Someone is liable to another for ultrahazardous activity is liable to another b/c the actor should recognize the likelihood of harm as unpreventable b/c of the ultrahazardous nature of the activity even if utmost care is exercised

ii) R2d § 519

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm

(2) This strict liability is