Vicarious Liability

Question 1

If the activity is done while serving “your master” will it be within the scope of employment?

Answer 1

Yes!

Question 2

What is the Rule for Vicarious Liability?

Answer 2

The employer’s vicarious liability extends to the negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within the scope of employment.

Question 3

What is Enterprise liability?

Answer 3

If the product or service price accurately reflects its costs [including accident costs], then the market will tend to favor the cheaper [safer] products or services.

Question 4

What is the Going and Coming Rule?

Answer 4

Going or Coming from work is not in the scope of your employment.
- Where employee is “on call”
- Where ER requires EE to drive personal car to work so that car may be used for work
- Where ER instructs EE to carry out job-related errand
- Where community serves dual purpose for both ER and EE.
- A trip involves an incidental benefit to the employer.

Question 5

Difference between a Frolic and a Detour?

Answer 5

Frolic: A major departure for personal reasons, taking the employee outside the scope of their employment. Frolic ends when the employee is once again doing assigned work.

Detour: A minor temporary departure from an employee’s duties that is still considered within the scope of employment.
- Ex. Stopping for a coffee? (detour) driving miles out of the way to go to a movie? (frolic)

Question 6

What is the Test of Causal Nexus?

Answer 6

For ER to be liable for EE intentional tort, EE’s act must have a causal nexus to EE’s work:
- Incident leading to injury must be an “outgrowth” of the employment
- Risk of tortious injury must be “inherent in the working environment”
- Risk must be typical or broadly incidental to Employer’s business
- Tort was a generally foreseeable consequence of the Employer’s business.

Question 7

What is the Two Prong Test for Scope?

Answer 7

Two-Prong disjunctive test: The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.

Question 8

Elements of Negligent Supervision or Negligent Hiring (Primary Negligence)

Answer 8

Plaintiff must prove that the employer:
- Owed a duty of care;
- Breached that duty by failing to supervise the employee or in hiring the employee or in retaining the employee; and that the breach of duty
- Was a factual cause; and
- A proximate cause;
- Of harm to the Plaintiff.

Question 9

What is an Independent Contractor?

Answer 9

A person who hires an independent contractor to perform work is not vicariously liable for the torts committed by that independent contractor. But can be primarily negligent for hiring someone unqualified or dangerous.
- Typically not liable for the independent acts of an independent contractor

Question 10

What are the Control Factors for an Independent Contractor?

Answer 10

1) Extent of control which aster may exercise over details of the work
2) Whether the one employed is engaged in a distinct occupation or business
3) Skill required in the particular occupation
4) Whether the employer or the workman supplies instrumentalities ,tools, and place of work
5) Length of time for which person is employed
6) Method of payment (by time or by the job)
7) Whether work is part of regular business of employer
8) Whether parties believe they are creating relation of master and servant.

Question 11

What are the exceptions to the Independent Contractor?

Answer 11

1) Where landowner (principle) retains control of manner and means of doing the work
2) Where principal engaged an incompetent contractor
3) Where the activity contracted for is inherently dangerous.