Respondeat Superior Notes

Topics: Tort law, Common law, Tort Pages: 5 (1493 words) Published: October 4, 2012
* Respondeat Superior
* If an employee is within the course and scope of his employment is negligent, both thte employee and the employer will be liable. * Sue just employee: F the employee has adequate coverage; and the employee is liked in the community * Sue just the Employer: Disliked Employer, and sympathetic employee that you do not want in the court room. * Consideration that the judges take on

* Ex: Hypo – Runner is in the course of business, and doing it in a manner in a manner which he would expect him to do it. The law firm would be responsible if he ran a stop sign and hurt someone. * Rationale: The employee is better able to pay the victim. The employer is getting the benefit of the employees work, so it makes sense. Also sometime si si impossible to tell which specific employee is liable. * Just because an employer is liable vicariously, it does not mean they cannot be independently negligent for their actions in the same event * EX: When you hired the runner and didn’t do an adequate background check,. Runner had suspended license, and past moving violations. The firm is on notice – the firm is negligent in its hiring of the * Negligent supervision, v. negligent hiring.

* How do you plead this – defendant was negligent. Law firm is respondent superior. Law firm is negligent for negligent supervision anad law firm liable for negligent supervision. * How would the

* Legal Malpractice
* Common mistake: That in a situation where both the runner and my firm has been sued, that people either settle with the active tortfeasor, and hope to. Or they dismiss the runner out of the case, but want to keep going against the firm * When you dismiss the actively negligent tortfeasor, you are letting the respondeat superior employer to go. * If you sue just the law firm, you will not have this problem. It only occurs is the D is involved. * MacNair case – Frolic, more than a mere detour. Even if you do not go the most direct way, you are still doing the job. Taking a different road to see the flowers v. going to visit a friend 4 towns over * The frolic is for the employees own benefit, where the frolic is for employers or both. * Ways and employeer

* Frolic – the employer is goin to win – detours ight be ok * Intentional Torts – unless the tort was ordered by the employer * Clearly in furtherance of the employee business

* Position of Trust with regard to a particular person * Childcare provider, cab driver
* Independent contractors
* Plumber is not your employee – their employer is who pays their tax stubs. As to the person who hired the plumber, you have no liability. You have no way to control the employee. This is based on control. Plumber chose the tools, and manner of work except. * Non-delegable duty

* Classic example: You do not have to climb the tree and do that, you can hire someone. you cannot delegate the legal responsibility. * If the person you delegate too doesn’t do it right, or makes it worse – you are still liable. * You can sue them too – Indemnify you, or

* Vicarious Liability outside of Employment
* Joint Enterprise Liability
* 491(c) Test
* Express or implied agreement of a group
* Common purpose of the group
* Community of pecuniary interest in the group
* Equal right to be heard on direction, equal right to control (equal vote on control) * If somebody gets hurts, then all fo us bear responsibility * This is bothersome, so we created, LLP, Corporations (No individual liability) * Permissive use of an Automobile

* If you loan someone your car, and you have a wreak. In addition to the driver being liable, is the owner liable too? * Some states say:...
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