Vicarious Liability

TORTS

Goals

Compensate plaintiffs
Allocating damages
Deter
Economic efficiency

VICARIOUS LIABILITY

Respondeat superior

If an employee commits a tort during the scope of his employment his employer will be liable (jointly with the employee)
Applies to all torts
Policy
Prevent future injuries
Assure compensation…spread losses (fairness)
Incentive to discipline/supervise
Successful suit may deter business for tortuous behavior and give them an incentive for better future behavior
Christensen v. Swenson
D was driving back from lunch to work and collided with motorcycle causing several injuries. P moved for SJ for VL under RS. Court deemed SJ for D inappropriate because it wasn’t clear if P was within the scope of employment
three criteria from Birkner for determining whether employee was within scope of employment

1. conduct must be of the general kind the employee was hired to perform

2. conduct must be within hours and ordinary spatial boundaries of employment

3. conduct must be serving the employer’s interest

scope of employment is highly contextual and must be determined by a jury
not VL…rides to and from home to work, frolic and detour
you can also sue an employer for negligence in hiring…not VL

Apparent Agency

Represented by purported principle
Reliance on the representation by a third party
A change in position by the third party in reliance on the representation

Policy
Spread losses to deep pockets, forces company to monitor hiring
Roesslar v. Novak
P suing hospital for injury caused by independently contracted doctor argued to be portrayed as apparent agent. Court deemed SJ for D because consideration of L’s status as an AA is for the jury.

Independent Contractors

Generally you cannot sue an employer for the tort of an IC
Policy
Doesn’t make sense to go after the company because they have less control and understanding of the work of the independent contractor
Consumer expectations are different
Insurance/Business Management
Fairness
You want to be able to hire an independent contractor to have a job done more adequately, without concerns of liability
Both parties benefit
Seems fair to spread risks to those actually doing the work
Exceptions
Employer’s own liability
Non-delegable duty
Inherently dangerous activities

-vicarious liability

-respondeat superior…employee/employer

-apparent agency…independent contractor

NEGLIGENCE

DUTY

Misfeasance (an affirmative act which harms or endangers P) v. nonfeasance (a mere passive failure to act)
Commission makes it easier to find duty, for an omission you have to prove an affirmative duty
Matter of law for the judge to decide

Affirmative obligations to act

Special relationships
Special relationship requires a situation open to the publicOR when one has custody of another who is deprived of normal opportunities of self-protection (custodial relationship)
Good Samaritan rule for physicians to stop and assist at accidents
Harper v. Herman
D, as a social host, does not assume a special relationship creating a duty to protect when he allowed an inexperienced diver on his boat
Examples of special relationshipsR3
Common carriers with its passengers; an innkeeper with its guests; a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises; an employer with its employees; a school with its students; a landlord with its tenants; Doctor/patient; Employer/employee
D involved in injury or creation of risk (negligent or non-negligent)…D has a duty of reasonable care to prevent or minimize harm R2 § 314
Policy: you have a duty because you are putting someone in a position which they would not have otherwise been in
D and victim as co-venturers
D has no general duty to rescue
Policy: deter inept rescue; remoteness (no clear causal element); impracticality (limits?); autonomy
However, once D voluntarily begins to rend assistance (even if she was under no legal obligation to do so) she must proceed with REASONABLE CARE. D must take all reasonable efforts to keep P safe and cannot discontinue her aid to D or leave her in a worse position then when D began to render assistance. R2 § 324
Policy: may prevent good rescue; causes person being rescued to rely on you
Farewell v. Keating
Court held that D failed to exercise reasonable care after voluntarily coming to the aid of Farwell and that his negligence was the proximate cause of F’s death. D knew or should have knew of his peril, and had an affirmative duty to come to Farwell’s aid.
Also, special relationship because they were co-venturers
Dissent
no authority is cited for close relationships establishing legal duties except policy saying it would be good for humanity
Duty to control others
Such a duty may arise either because of a special relationship between D and P, or a special relationship between D and the third person
Third person must be known and must be known to benefit from being informed in order for D to have a duty to him
This type of duty cannot rest on foreseeability alone
Tarasoff v. Regents of Univeristy of California
Court held that because of special relationship between defendant psychotherapist and patient, who told them of his intent to kill P, Ds had a duty to warn P of patient’s intentions (which were later carried out) if a reasonable person would have done so. Ds did not, however, have a duty to P to confine the patient, because of a state statute granting doctors immunity with respect to this kind of decision.
Concurring and Dissenting
dissents that a only therapists who predicted and failed to warn that can be held liable
Dissent
Policy against: inherent value of confidentiality; difficult to predict; burden of warning the third party (reasonableness); treatment may be deterred by lower disclosure; unnecessary warnings; overcommitting people

Policy bases for invoking no duty

Ruinous liability
Strauss v. Belle Realty Co.
Failure of CE Elec. Led to NYC blackout. P fell in common area of building where landlord paid for electricity. Court held that while limiting recovery to customers in this instance can hardly be said to confer immunity from negligence on Con Edison, permitting recovery to those in P’s circumstances would, in our view, violate the court’s responsibility to define an orbit of duty that places controllable limits on liability
Policy: limitations to direct, contractual, or seemingly so, liability; avoiding ruinous liability
Far reaching social implication and ill-equipped judiciary
Reynolds v. Hicks
Court held that social hosts have no duty to third parties injured by intoxicated minors leaving their events because social hosts are not as capable of handling the responsibilities of monitoring their guests’ alcohol consumption as are their commercial and quasi-commercial counterparts.
Policy: judiciary is ill-equipped to impose social host liability; social hosts have no profit motive to control guests; changes the way we socialize
Dram shop acts
most states have enacted dram shop acts that impose liability on commercial enterprises for harm resulting from intoxication when they serve a person to the point of intoxication or serve an intoxicated person

The duty of landowners and occupiers

Generally concerns the circumstances of the land
Rules may differ from duties that apply to activities on the land
Duty and breach get conflated entirely
What is the status of the plaintiff on the land, and what is the reasonable care owed that plaintiff?
Legal trends
Despite some cases, like Heins, many Js retain traditional categories
Heins v. Webster County
elimination of distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors…still retain trespasser distinction
change of law applied prospectively
dissenters argue the removal of these distinctions socializes private property, and that more trials will go to jury because determination of reasonable level of care will have to be considered
however, homeowners insurances makes this elevation of licensees less burdensome
Even more have abolished some or all of the categories
Most commonly eliminated distinction is between invitee and licensee
Most Js define scope of duties based on status of entrant
Key points
Liability based on condition of land/property is generally imposed on possessor of the land
Rather than the owner
This is because possessor is best situated to control condition of land
Exceptions exist if owner is in better position (i.e. LL)
Limited duties generally apply only to injuries to someone who comes on the property…if conditions of or action on your land cause injury to those outside your property
Ordinary principles generally apply
OR sometimes SL principles apply
Rationales for limiting duty to those who enter your land as compared to those off your land:
Individualism concerns
Notion of sanctity and privacy of home
Right to use your home as you choose
Traditional categories
Trepasser
Enters or remains on land w/o possessor’s consent or permission
Licensee
Has permission to enter premises, but is not invitee
Until you say leave your property…licensee assumes permission
You may be liable for sales solicitor until you tell him to leave
Invitee
On premises with possessor’s permission AND
Land is open to the public OR
Business reasons that concern possessor
Some Js required material benefit to possessor
Duties Owed to Trespassers
General rule
No duty of reasonable care regarding conditions of or activities on premises
Often, duty to refrain from intentional, willful, and wanton conduct
Exceptions
Discovered trespasser
When possessor knows that T is on property, there is a duty to refrain from intentional, willful, wanton injury
Some courts:
Duty to use reasonable care, particularly where risk is from activity on, as opposed to conditions of, premises
Rationale
Misfeasance v. nonfeasance decision
Frequent trespasser
E.g., person who regularly cuts across your lawn
Some Js
Duty to warn of hidden dangers
Duty of reasonable care to avoid harm through activities
Other Js
Also duty of reasonable care for conditions or premises
Rationale
Begins to look like tacit permission, merges in licensee
Child trespasser
R2 § 339, liability if:
Possessor knows or should know children are likely to trespass
Possessor knows or should know that condition poses unreasonable risk of death or serious bodily injury
Children do not discover the condition or realize the risk of condition
Utility of maintaining condition and burden of eliminating it are slight compared with risk AND
Possessor fails to exercise reasonable care to protect children
Rationale
Trespassing children are FOS, whether or not enticed; traditional rationale… “attractive nuisance”
Duties owed to licensees
Sometimes its hard to distinguish Ls from Ts
E.g. if possessor does not stop people from taking a shortcut, may lead to jury question regarding status
Permission may be implied from
Possessor’s conduct
Or from condition of property
Licensee is expected to accept premises as possessor maintains them
May be entitled to be warned of know conditions
No duty
To inspect premises
To discover dangerous condition
Or to make premises safe for the visit
Carter v. Kinney
P slipped on ice on D’s driveway. Court held that Ds had no duty to protect P, a social guest, from unknown conditions because he was a licensee. Social guests are classified as licenseesbecause there is a common understanding that the guest is to take premises at the possessor uses them and does not expect preparations regarding his safety, etc.
Some Js
May be duty
To warn of known hidden dangers
Or duty to make safe known dangers
Some courts impose duty of care regarding activities on, as opposed to conditions of, land
Operating machinery
Backing up a car, etc.
Duties owed to invitees
Possessors owe an affirmative duty of care:
includes:
to discover dangers
to protect against dangers of which possessor is or should be aware
Landlord liable to tenant if:
Hidden danger that LL but tenant is not aware of
Premises leased for public use
Under LL’s control…i.e., common area
Negligent repair by landlord
Liability likely if landlord promised to make repairs and did not or did so negligently
Policy
Tenant financially unavailable
Lease makes improvements not so beneficial
Landlord assumes obligation
there is a movement to extend landlord liability to reasonable care
policy: LL can pass on costs to tenants through higher rents
LLs’ sometimes liability sometimes extends outside their premises
LL may also be liable for protection of tenants from criminal activity
Policy: provide incentive to maintain premises (because LL will not be criminally liable)

Immunity…NO DUTY

Charitable (funds not intended for tort claims), intrafamily, governmental
Spousal immunity
Abolished
Parental immunity
Abolished

Intrafamily duties

Broadbent v. Broadbent
Court held that a parent is not immune from their tort based solely on their relationship with their child.
Installed a “reasonable parent test,” in which a parent’s conduct is judged by whether that parent’s conduct comported with that of a reasonable and prudent parent in a similar situation
Policy for:
Disturbs domestic tranquility more if not liable
Disruption has already occurred
Fraud and collusion possible in all suits
Recovery from insurance could actually ease financial burden
It is really rare that child will predecease parents
Thus it is rare for parents to benefit off of the harm they caused
However, undercutting of parental authority is one major concern
Approaches
Complete abrogation…Broadbent
Protection under parental activities
Duty to the world …no PI
Duty to the child…PI
Total PI
Mother generally owes no duty to unborn child

Governmental Entities

Bottom line: you cant sue the government UNLESS they say you can
Riss v. City of New York
D has no duty to provide police protection to any particular member of the public. If such duty were recognized, and enforced by the courts, this would “inevitably determine how the limited police resources of the community should be allocated and without predictable limits”
Types of governmental activity
Services (private sector)
NO GI
Service (public sector)
NO GI
Protection of the public
GI
Concerns
Allocation of resources
Predictability
Unlimited liability
More pressures on police to respond if people know that they can make claims without much of a predication for the likeliness of injury
This can be constrained…just because you can be sued doesn’t mean the suit will be successful
Institutional roles
Judiciary does not have the oversight of the legislature to make claims as how gov’t resources should be properly delineated
Separation of powers issue commonly comes up here
Courts do not have the expertise that the police have in the allocation of resources
Limitations on GI
Public undertaking activity to help as requested by police
Creation of risk
Promise….Direct contact, promise, reliance on that promise
If police are there and witness the harm, then they have a duty to act
911 call
special relationships exist only when the police create them
this goes back to the fact that the police essentially give you permission to sue them
there must be an affirmative act on the part of the government…commission or special relationship
Federal Tort Claims Act (1946)
You can sue the federal government or its employees in the scope of employment for tort claims that would be okay against civilians
Exceptions:
You can’t get punitive damages
You can’t sue if the employee is following statute/regulations
You can’t sue for many intentional torts
You can’t sue for discretionary functions of government
This is where many issues occur…what is a discretionary function is a debatable point
Discretionary Function Exception
Was there a choice?
Statute or regulation imposing choice
If choice, discretionary function?
Political, social, economic, etc.
Policy laden?
You can’t sue when the decision made is fraught with policy considerations
You can’t sue when it is a discretionary function
You can sue when the decision made is not fraught with policy nor discretion
4 rationales for providing governmental immunity
court is not well-versed in governmental decision-making
separation of powers
limited funds
we do not want to chill the decision making of the executive branch

Duties to avoid emotional harm

negligently inflicted emotional distress
tort law tends to privilege physical harm
you can recover for parasitic emotional distress
situations in which there is preliminary physical harm
tough areas
no physical harm
physical harm comes after
bystanders

Direct Victims

Approaches
Physical impact rule
Zone of danger
R2 § 436
P can usually recover when he fears for his own safety
Falzone v. Busch
D’s husband was struck by a car in front of her. Court held that where negligence causes fright from a reasonable fear of immediate personal injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability. This was a change in law: discarding the physical impact standard.
Policy
Medical evidence suggests relationship between emotional disturbance and physical injury
Fraud may come up in all tort cases
Difficultly of proving causal connection should not bar P’s recovery
Expansion of “judicial machinery” in reaction to the impending flood of litigation
However, overdeterring remains a pertinent issue
Concerns victims P is on notice about
Extension of impact rule
Near miss
Still linked to physical harm…stemming from emotional distress
Premised on the traditional neg. concept that by unreasonably endangering P’s physical safety D has breached a duty owed to him for which he should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by D’s conduct
Gammon
More traditional notion of tort law for emotional distress
Treats ED like physical harm
Doesn’t privilege physical harm like the zone of danger does
Negligent mishandling of corpses; negligent transmission of telegraphs
Physical impact rule eroding
However, in these cases recovery, most courts require that some physical symptoms manifest for recovery to be allowed
Limits fraudulent claims
Exceptions
Telegraph company negligently sending death notice
Negligent mishandling of corpses
Gammon v. Osteopathic Hospital of Maine Inc.
Court held that previous requisites connecting physical injury as a cause or result for an emotional distress claim to be successful are arbitrary and should not bar recovery
tort principle of foreseeability provides adequate protection against unduly burdensome liability claims for emotional distress
D is bound to foresee physic harm only when such harm reasonably could be expected to befall the ordinarily sensitive person (especially vulnerable victim)
High probability of SEVERE emotional distress for family of recently deceased when coming across a severed leg
The “at-risk plaintiff”
May P recover for the purely emotional harm of being distressed by this increased likelihood of illness, assuming that there are no symptoms of the illness itself
Some courts require D to prove that actual exposure occurred more probably than not
Some court require that possibly of contracting illness is probable than not

Indirect Victims