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Anglo-American


Contract and Torts




Prof. Mark P. Gergen


14. Strict liability—


abnormally dangerous
activities and vicarious
liability
Vicarious liability—respondeat superior

An employer is strictly liable for torts committed by an


employee who is acting in the scope of his employment.
The employer is liable though it is in no way at fault.

•a form of strict liability (enterprise liability)

•the employer may also be liable based on its own negligence in hiring,
supervising, or equipping an employee.

The employer has a right to be indemnified by the


employee. Indemnity is almost never sought by
employers.
Indemnity is the right a secondary obligor has to
demand reimbursement by the primary obligor when
the secondary obligor satisfies an obligation.
Typically this is contractual, as in liability insurance.
Traditional rule is that conduct is within the
scope of employment if the conduct is actuated
in part by a purpose to serve the master.

Limpus v. London General Omnibus (1863), Text 101,


shows courts stretched to hold conduct within this
principle to compensate victims. Coach driver
intentionally obstructed other coach to get revenge for a
perceived slight . . .
Some US courts apply the principle that an employer is
liable if its employment of the tortfeasor substantially
increases the risk of the incident.

Priest sexually molests child in his congregation. Is the


church liable under the traditional rule? Under the
principle just described?
Generally no vicarious liability for the torts of an
“independent contractor” unless the contractor is
engaged to perform a “non-delegable duty.”

Service provider is an “independent contractor” if the


hirer has no right to control the manner and means by
which the work is done.

Non-delegable duties include


•Certain affirmative duties, such as duty of business
owner to maintain safe premises. Colmanares, Text
61-62
•An “inherently dangerous activity”
E.g., hiring a contractor to use explosives).
Rogers v. Night Riders (CA/Eng. 1983), Text 92 (P calls D
for cab. Cab company is a routing service. Cab drivers
own and operate their own cabs. P is injured as a result
of defect in the cab.)
Hardy v. Brantly (Miss. 1985), Text 96 (P goes to
emergency room of hospital. Physician who negligently
treats him, resulting in P’s death, works as an
independent contractor).

The defendant is held liable for the independent


contractor’s negligence in both cases. But this is not on a
general theory of vicarious liability.
In Rogers the theory is P contracted with the company
for a well-maintained cab. See Text 93 middle and
bottom.

In Hardy the theory appears to be that the hospital led P


to believe that the physician was its employee. See Text
98 middle. Hannaola, Text 97 bottom, uses the concept
of estoppel.

Had the cab driver negligently run into another car, the
cab company would not be liable . . .

In both cases the underlying problem is that the driver


and physician didn’t have sufficient insurance to cover
the loss. The results throw the excess loss on the cab
company and hospital . . .
In many common law jurisdictions there is a rule of
strict liability for abnormally dangerous activities, such
as blasting or keeping dangerous animals.

In a strict liability action proof of an abnormally


dangerous activity substitutes for proof of negligence.
Everything else is the same including the rules on what
counts as an “injury,” which generally limit liability to
physical harm to person or property.
Strict liability for abnormally dangerous
activities
Rylands v. Fletcher (artificial reservoir built above
underground mine in mining region bursts flooding P’s
mine)
Keeping animals known to be dangerous

Blasting

But not driving an automobile or even a large truck


or owning a gun though these are quite dangerous
activities.
Two arguments for strict liability:

1) Compensation for harms caused by
nonreciprocal risks; and

2) Reduction of risks inadequately regulated by
negligence liability (sometimes described as
an evidentiary rationale).
Reciprocity is basically a fairness argument. People who
engage in unusual activities that impose a significant harm on
others even if done carefully profit at the expense of others
under a negligence regime.

Conversely negligence liability is thought appropriate for


activities that involve reciprocal risks because the benefit
of immunity and cost of accidents not worth avoiding are
shared roughly equally.
Liberty
Security

Culpability Strict liability


for abnormally
dangerous
activities
D owns a vicious dog, which he prudently keeps in a
well fenced yard. P crosses the fence into the yard,
trespassing, and is bitten by D’s dog. Assume liability is
strict so breach (carelessness) is not an issue. With
which of the following defenses does D have a
reasonable likelihood of success?

a) No duty
b) No causation
c) Outside of scope of liability
d) Superseding cause
e) Contributory negligence
f) Assumption of risk

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