Vicarious Liability

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OVERVIEW QUESTIONS 1. How is vicarious liability defined? 2. Name three circumstances in which a party may be vicariously liable. a. b. c. 3. What is the doctrine of “respondeat superior”? a. What is the rationale for this doctrine? b. What is the practical reason underlying this doctrine? c. Under what circumstances is this doctrine applicable? d. Is an employer vicariously liable for the intentional torts of an employee? e. Is an employer vicariously liable for injuries caused by an employee going to or from work? f. Is an employer vicariously liable for injuries caused by an employee while on a “frolic” or “detour”? g. How does the traditional view of “frolic” and “detour” differ from the more modern view? h. Is an employer vicariously liable if he explicitly forbids an employee to do something and the employee does it anyway? i. If an employee delegates his or her authority or rights to another without the employer’s authorization, is the employer vicariously liable for the negligence of the third person? 4. Is an employer vicariously liable for the negligent acts of an independent contractor? a. What is the difference between an independent contractor and an employer? b. What factors should be taken into consideration in deciding whether an individual is an employee or an independent contractor? (1) (2) (3) (4) c. Is the fact that an employer refers to someone as an independent contractor dispositive in determining the nature of the relationship? 5. Name and describe five exceptions to the nonliability rule regarding the vicarious liability of employers in reference to independent contractors. a. b. c. d. e. 6. What is the “retained control” exception? a. Must the control under this exception pertain to control over the premises or control over the manner of work being performed by the contractor? b. What nondelegable duty is set forth under Section 422 of the Restatement?

7. Historically, what was the rule in reference to physicians’ liability for those who worked under them? a. What was the impetus behind this rule? b. How has this rule changed in recent times? 8. What is the difference between a bailor and a bailee? Give an example of each. a. Under the common law, is a bailor vicariously liable for the negligence of a bailee? b. What if the bailor negligently entrusts control of his or her property to a person he or she knows, or reasonably should know, and is likely to endanger others? c. For what reason have the courts typically sidestepped the nonliability rule for bailors in the context of vehicles? d. What is the consequence if a court creates a presumption that an owner has control over his or her car? (1) Do all courts create such a presumption? (2) Is this presumption applicable if the owner is not present when the accident occurs? 9. What is the family-purpose doctrine? a. Who created this doctrine and why? b. Is this doctrine applicable even if the driver is using the car for his or her own purposes (assuming the driver is a member of the owner’s household and has permission to use the car)? c. What is the status of this doctrine today? d. For what practical reasons do plaintiffs turn to this doctrine? 10. Who created the automobile consent statutes and why? a. What do these statutes provide? b. Is the doctrine applicable if the bailee exceeds the scope of the bailor’s consent? c. Is the bailor still liable if the bailee loans the vehicle to a third person? d. How has the “omnibus clause” affected the use of these statutes? 11. What are the four elements of a joint enterprise? a. b. c. d. 12. For what reasons is a social trip not considered a joint enterprise? 13. What are the legal consequences of characterizing an activity as a joint venture? a. In what types of circumstances does this doctrine normally arise? b. How can this doctrine be used to prevent a passenger from suing the driver of the vehicle in which the passenger was riding? 14. What does it mean if the negligence of one person is imputed to another? a. What are the consequences of having the negligence of one spouse imputed to the other spouse? b. What is the modern rule regarding the imputing of contributory negligence? c. Give an example of a situation in which the contributory negligence of one party would be imputed to another. d. Why is the negligence of a driver generally not imputed to a passenger in that same vehicle? e. Why is the imputed negligence doctrine applicable when derivative claims are involved? 15. Why have some states adopted statutes holding parents liable for the tortuous acts of their children? a. In what situations can parents typically be found liable?

REVIEW QUESTIONS 1. In what circumstances is an employer vicariously liable for the acts of an employee? 2. In what circumstances is an employer vicariously liable for the acts of an independent contractor? 3. In what circumstances are parents liable for the acts of their children? 4. What are the exceptions to the bailor nonliability rule? 5. Give an example of a situation in which negligence would be imputed and contrast that with a situation in which negligence would not be imputed.

PUTTING IT INTO PRACTICE You and a coworker are involved in a motor vehicle accident. If the driver of the other vehicle wants to recover for her damages, will she be able to sue your employer, whose car your coworker was driving at the time? Will you be able to recover from the other driver for your damages? Are there any circumstances in which the driver of the other vehicle might be able to recover from you?

KEY TERMS Define the following: automobile consent statute bailee bailor imputed negligence independent contractor joint enterprise respondeat superior vicarious liability