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