Westinghouse 27 i but employers benefit must be

Westinghouse )

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i. But employer’s benefit must be balanced against the
personal nature of the trip ( Ahlstrom v. Salt Lake )
b. Special Hazards : when travel to and from work involves
special hazards; must be more than distance
c. Dual Purpose Doctrine : when employee is both
commuting and performing a service for employer, he is
within scope of employment
iv. Frolic v. Detour : a frolic is not within the scope of employment, whereas
a mere detour is
v. Despite Faul v. Jelco , travel pay is a bad indicator of scope of
employment
d. Does Necessary Principal-Agent Relationship Exist?
i. Five Factors ( DC v. Hampton )
1. selection and engagement of servant
2. payment of wages
3. power to discharge
4. power to control agent’s conduct (generally most important)
5. whether work is part of regular business of employer
ii. Independent Contractors 644-647 : Employers are not vicariously liable
for the torts of independent contractors
1. As a result, employers often attempt to structure contracts so that
employees will be considered independent contractors
iii. Even if not vicariously liable, employer can still be liable for his own
negligence in hiring/retaining incompetent employees
3. Other Forms of Vicarious Liability
a. Partnership : each partner can be seen as general agent for the other partners
b. Joint Enterprise : all members liable when outside persons are injured, but not
liable when members of enterprise are injured
c. Concert of Action
d. Tacit Agreement to Participate in a Tort
e. Entrustment of Vehicle
i. Negligent Entrustment: Not vicarious liability, but liability under
comparative fault rules
ii. Owner in the car with right of control: ordinary negligence, not vicarious
iii. Ordinary bailment: no agency and no liability
iv. Owner consent statutes: owner liable if he consented to use by another
v. Family Purpose Doctrine: owner liable for negligent use by family
member
f. Imputed Contributory Negligence
i. Both Ways Rule : If M is vicariously liable for S’s negligence, then M’s
recovery against T is either reduced or barred on the basis of S’s
negligence
ii. Negligence of Family Members: No longer true that family member’s
negligence will be imputed to another family member
iii. Bailments: owner can usually recover against negligent third party even if
bailee was at fault

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4. Insurance: Reduction of Risk Through Cost-Spreading (800-804)
a. Insurance companies are vicariously liable: they didn’t burn the house down, but
they’re going to have to pay for it
b. What it Does :
i. Takes advantage of increased statistical accuracy of large numbers to
reduce uncertainty (it’s easier to predict that one house out of a hundred
will burn down this year than to predict exactly when my house will burn)
ii. Spreads cost of managing/preparing for uncertain risks among all
members of the risk pool
c. Two Types
i. First Party Insurance (Loss Insurance)
1. If there is a loss, insured party reports it to his own insurer and gets
compensated
2. Fault is irrelevant
3. Insurance company gets subrogated to rights of insured and can
sue whomever is actually at fault
4.