Vicarious Liability

Question 1

Vicarious Liability - Legal Underpinnings

Answer 1

• always keep in mind two counts: can first argue that the employer was negligent in hiring the employee, and if that fails, can go to strict liability for employer under vicarious liability
• hybrid of negligence and strict liability: underlying tort of the employee is negligence, but the employer is held strictly liable

Question 2

2 Kinds of Vicarious Liability

Answer 2

• vertical - employer to employee

- horizontal - partners

Question 3

Konradi v. U.S.

Answer 3

• 1990
• postal worker negligent while driving to work in same vehicle used for work
• question arises as to whether this was in the scope of the employment (during the commute is traditionally not considered w/in scope of employment) -> court doesn’t actually affirmatively answer this, just decides that you can’t say he was beyond scope of employment as a matter of law

Question 4

Konradi - Significance

Answer 4

• illustrates functional approach to vicarious liability - formally, commute time is not within scope of employment
• functionally, examines if liability could induce employer to do something beneficial/minimize risk -> if so, the activity is within scope of employment

Question 5

Scope of Employment - Factors from Open Memo

Answer 5

• whether the conduct was within the furtherance of the interests of the employer
• whether the conduct is of the kind the employee is authorized to perform
• whether the conduct is substantially within authorized time and space restrictions
• whether the conduct should have been reasonably foreseen

Question 6

Ira S. Bushey & Sons v. U.S. - Facts

Answer 6

• 1968
• US Coast Guard is the defendant -> uses a docked vessel as barracks, + one of the members of the Coast Guard gets drunk and causes damages to pl’s drydock

Question 7

Ira S. Bushey & Sons v. U.S. - Holding and Reasoning

Answer 7

• even if the act wasn’t done in service to the employer + was outside employee’s official duties, you’re still liable if it was foreseeable as part of the employer’s operation
• exhibits the efficiency and justice rationales - even if the Coast Guard isn’t the cheapest cost avoider, they should still bear the burden of the characteristic risks of their activities
• concept that scope of employment should be read in light of policy rather than narrowly constricted (sailor technically went AGAINST instruction, but employer created the risk)

Question 8

Cheapest Cost Avoider Rationale

Answer 8

• background safety - the further back you go, the more efficacious it becomes to control the risks
• you want the burden to be put on the party who’s best-positioned to identify the risks and act on them (desire to mobilize their knowledge of the risks, vs. on the victim’s side you’ll always have a gap)
• self-criticism rather than court criticism -> automatically inducing mobilization of the employer’s knowledge

Question 9

Fairness Rationale for Strict Liability

Answer 9

• whoever benefits from the harmful activity should bear the burden
• exemplified by Bushey & Sons
• employer benefits most from the activity, so should also bear the burden of its characteristic risks

Question 10

Goals of Strict Liability

Answer 10

• internalize accident costs -> beneficiaries of an activity should pay its characteristic risks
• mobilize the CCA -> let the employer figure out which burdens are worthwhile (industry able to minimize its characteristic risks better than judges and juries)

Question 11

Industrialization and Strict Liability

Answer 11

• shift from classical to modern period - concept that in classical period, there was essentially a subsidy for industry (they did NOT have to pay for all their characteristic risks, just had to take “reasonable care” in preventing them under negligence standard) -> at the time, looking to promote industry and wary about burdening it by making it pay for its full costs
• vs. modern period, recognizing that there are characteristic harms of industry and they shouldn’t be placed unevenly on those who just happen to encounter them (should be distributed among the beneficiaries)

Question 12

Employers and Independent Contractors - General

Answer 12

• usually, no vicarious liability when there’s an independent contractor, BUT there are exceptions

Question 13

Independent Contractors vs. Employees - Factors to Consider

Answer 13

• control/right to control is relevant to the distinction, but not determinative
• whether or not the one employed is engaged in a distinct occupation or business
• kind of occupation (w/ reference to whether normally employee or ind. con.)
• skill required in the occupation
• who supplies the tools
• length of time and method of payment
• what the parties think
• whether or not the principal is in business
• whether or not the work is part of the regular business of the employer

Question 14

Exceptions to Independent Contractor Rule

Answer 14

• employer has control (although this really just brings it into employee realm)
• negligence of employer in selecting, instructing or supervising contractor (although this is really more negligence than strict liability)
• inherently dangerous activity
• non-delegable duty

Question 15

Becker v. Interstate Properties

Answer 15

• company can be held liable for tort of independent subcontractor if subcontractor is not financially capable of paying damages
• policy considerations: allocation of costs to party in best position to bear them. allocation of risk to party in best position to control the risk, + bearing of costs by party that stands to benefit most from the activity

Question 16

Misiulis v. Milbrand Maintenance Corp.

Answer 16

• discussion of whether shopping center should be held liable for independent contractor’s (roofing co) negligence
• q of who owns the risk -> shopping center benefits from pl’s business + should therefore bear the burden of pl’s safety (duty to exercise reasonable care in making repairs to premises)
• would also want to make sure pl receives comp (financial responsibility of contractor vs. shopping center)