Torts II (1).doc - TORTS II I Liability Without Fault Dispenses with proof of unreasonable(or worse conduct or any conduct at all to a person to whom a

Torts II (1).doc - TORTS II I Liability Without Fault...

This preview shows page 1 - 3 out of 24 pages.

TORTS II I. Liability Without Fault Dispenses with proof of unreasonable (or worse) conduct - or any conduct at all- to a person to whom a duty is owed directly or by reason of a relationship and harm is foreseeable. Elements 1. Duty 2. Causation 3. Harm E.g. -vicarious liability for employee’s actions -strict liability for defective products -workers compensation A. Vicarious Liability P’s right to recover against D based solely on the tortuous conduct of a third party with whom D has a relationship either by operation of law or by contract E.G. -Employer- employee relationship (respondeat superior or master/servant rule) -Owners of dangerous instrumentalities -Partners and joint venturers *if facts show that defendant grossly negligent then vicarious liability will be hard to prove RESPONDEAT SUPERIOR : Employer will be liable for the torts of an employee committed within the scope of employment Elements 1. Tortious conduct must be committed incidental to or during scope of employment -conduct actuated to serve employers’ purpose, including special errands -need not be specifically authorized as long as foreseeable in light of duties -must be an employee and not an independent contractor O’Connor v. McDonald’s Restaurant p. 402 Going and Coming Rule -ordinary commute not within scope of employment Exception: returning home because of special errand at request of employer Frolic and Detour Rule -Frolic: not within scope of employment where complete abandonment of duty or complete departure from special errant -Detour: within scope of employment where only a minor deviation of duty or from special errand - Factors: extent of deviation, employee’s intent, nature, time, place of conduct, work hired to do, incidental acts expected, discretion permitted 2. Must be an Employee not independent contractor (third party soley responsible, some relationship but not under complete control of employer) Factors ( whether or not an employee generally depends on degree of control) 1. Extent of control exercised by the master over the details of the work 2. Distinct nature of the worker’s business 3. Specialization or skilled occupation 4. Materials and place of work 5. Duration of employment 6. Method of payment 7. Relation of work done to the employer’s regular business 8. Belief of the parties EXCEPTION:
Image of page 1
An employer who hires an independent contractor to perform inherently dangerous activities will be liable for vicarious liability Santiago v. Phoenix Newspapers p. 407 * in general intentional torts are not covered under vicarious liability but e.g. bouncer at club- may be required in nature of business, tort is a direct outgrowth of conduct that was within the scope of employment Right to Indemnification employer has right to sue employee for the full amount paid; some states limit right to reckless or intentional conduct Owner of dangerous instrumentality, including vehicles - may be responsible for accident caused by the use or operation of a dangerous instrumentality by another who had express or implied consent
Image of page 2
Image of page 3

You've reached the end of your free preview.

Want to read all 24 pages?

  • Fall '07
  • Hoener
  • assumption of risk, Personal injury, comparative negligence

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes