Westinghouse 27 i But employers benefit must be balanced against the personal

Westinghouse 27 i but employers benefit must be

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Westinghouse )
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27 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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28 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.
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