Some Considerations to Torts

05-09

A. Vicarious Liability – flows from relationships

1. Employer/employee relationship (Respondeat superior) – vicarious liability for acts within scope of employment, (interpreted broadly including minor departures from work).

a. Employee acting within scope if:

(i) employees conduct occurs substantially within the hours and ordinary spatial boundaries of employment;

(ii) employees conduct is motivated at least in part by serving the employers interest; AND

(iii) employee is acting on employers business, not personal business

b. Minor departures – if employee makes short trip/detour for personal purposes (frolic) while on employers business, employee is acting in scope of employment if deviation is reasonably foreseeable

HYPO: Employee』s quick personal side trip to the dry cleaner on the way to a business delivery is within scope of employment, but one-hour visit to doctor between deliveries is going outside scope.

c. NO vicarious liability for intentional torts UNLESS:

(i) Authorized in the employment (i.e. employee has right to use force, but exceeds his scope)

(ii) Friction is generated by employment (i.e. repo-man)

(iii) Over-zealous employee (acting in a misguided effort to serve the boss』s purposes)

2. Hiring party/independent contractor – NO vicarious liability EXCEPT:

a. Independent contractor is engaged in inherently dangerous activities

b. Non-delegable duty (land occupier liable when contractor hurts invitee)

c. Land Occupier is vicariously liable if an independent contractor hurts an invitee

3. Car owner /driver of a car – NO vicarious liability EXCEPT:

a. Driver is the owner』s agent (e.g., owner lends driver the car to run an errand for Owner)

b. Owner can be held liable for negligent entrustment of car or other object with potential for harm if owner knew/should have known of drivers or users negligent propensities.

HYPO: If a 4-year old child causes an accident by releasing the emergency brake of a car, parent can be held liable for negligent entrustment if parent left car unlocked and knew children played in the car.

4. Parents/children – parent not vicariously liable for tortious conduct of a child but most statutes make parents liable for willful & intentional torts of kids up to a certain amount.

a. Parent/guardian is vicariously liable if child commits a tort while acting as agent for parent/guardian

b. Parent/guardian is NOT vicariously liable for failing to supervise a child, unless parent/guardianaware of the childs violent propensities and failed to control/restrain child from committing the wrongful conduct that caused the injury

HYPO: child D is liable for battery if he intentionally laces Ps drink with a drug, intending for P to drink it later that night, and Ds parents will be liable if they knew D did it in the past in similar circumstances.

c. Parents/guardians are not negligent in failing to supervise a child, so long as the child has the capacity and intelligence to act for themselves and there are no special circumstances present which would require parental surveillance

HYPO: A 6 yr. old should not mow the lawn unsupervised, but an 11 yr. old is capable of safely mowing a lawn without supervision, unless something about the 11 yr. old that would indicate otherwise.

5. Tavern Owner/Patron – can be vicariously liable for unlawfully serving minor or a drunk (really a ? relationship)

- NOTE: before using vicarious liability, first ask whether negligence applies

B. Joint Tortfeasors - Co-Defendants Issues

1. Concurrent tortious acts of 2 or more Ds combine to injure P, and it is not possible to reasonably allocate portions of Ps injury to separate Ds

a. Comparative contribution – jury assigns D relative fault in percentages; out-of-pocket D can recover in proportion to those percentages

HYPO: If A and B are chargeable with 25% and 75% of the fault respectively and A pays P』s judgment in full, A can recover 75% of his payment as contribution from joint tortfeasor B.

a. Indemnification – allows shifting the entire loss

(i) Vicarious liability – out-of-pocket D allowed indemnification from active tortfeasor

(ii) Strict products-liability – non-manufacturing D』s can get indemnification from manufacturer

C. Wrongful Death

1. NOT A TORT. Procedural device (not a tort) allows surviving family members to bring a tort action against D – limited to recover only pecuniary damages (i.e., income P would have made if not been killed), NOT pain & suffering

D. Loss of Consortium – if victim of (any) tort is also a married person, the uninjured spouse gets a separate cause of action in his/her name to recover for 3 elements of damage:

1. Loss of services (cooking, cleaning, etc.)

2. Loss of society (lost his best friend, etc.)

3. Loss of sex

E. Equitable remedies (P may seek an equitable remedy/injunction in some cases)

1. Equitable remedies can only be granted where a property right is present.

2. Negative or Prohibitory injunction – order refrains D to do an action (e.g., stop trespassing on P』s land, stop punching D)

3. Mandatory or Affirmative injunction – order compels D to do an action (e.g., build a fence to stop nuisance)

- NOTE: monetary & injunctive relief are NOT mutually exclusive – courts can freely combine

4. Equity Defenses

a. Unclean hands – argument that P is guilty of misconduct relating to same transaction involved in the litigation (not an absolute defense)

b. Laches – means prejudicial delay (neglected to file lawsuit for a long period of time)

c. 1st Amendment considerations – infringement on the 1st Amendment (e.g. no prior restraint)