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Torts II Outline - A Vicarious Liability One person is held...

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A. Vicarious Liability One person is held liable for the negligence of another simply by virtue of their status (negligence imputed). The superior has to respond to the inferior’s act. Negligence of employee was the cause of the injury. The legal assumption is that the employer has done nothing wrong but the negligence is imputed on the employer simply because of his status as the superior. They will each be held jointly and severally liable to the Π. In a situation where one is working on behalf of another, the ∏ wants to seek the deepest pockets so he will want to find the employer liable for damages. The ∏ will argue that the employer is vicariously liable; on the flip side the employer will want to argue that the employee was in fact an independent contractor and not an employee or was not acting within the scope of employment. The employee may choose to go after the employer under the doctrines of contribution and indemnity Contribution – if one ∆ had paid more than his pro rata share, he may seek partial reimbursement from the other ∆s If one tortfeasor settles, other tortfeasors have no right to seek contribution unless they can show the settlement was in bad faith or out of the ballpark. Indemnity – 100% shifting of liability. When you have one ∆ who has paid some or all of the Π’s damages, that person can be indemnified by the other tortfeasor for everything that he paid ***BOTH OF THESE APPLY TO ANY VICARIOUS LIABILITY RELATIONSHIP*** Respondeat Superior An employer will be liable for the negligence or tort of his employee if the negligence or tort was committed while the employee was acting in the scope of his employment. An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities. The more control an employer has over the activities of the employee the more likely it is that the employee is acting within the scope of employment. General rule: An employer will be liable for the negligence or tort of his employee if the negligence or tort was committed while the employee was acting in the scope of his employment. Exception: 1. An employer may be held liable for the intentional torts of his employee when they are reasonably connected with the employment and so within its scope (exception – if the employee acts from purely personal motives) 2. if an employee commits an intentional tort in the course of his employment 3. reckless in employing or retaining the employee if the employee was employed in managerial capacity and was acting in the scope of employment 4. if it is reasonably foreseeable that the employee will commit an intentional tort during the course of their business then the employer would be held vicariously liable i. where employer was negligent in the selection of the employee ii. employee is furthering the business of the employer while committing
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