=P vs. D1 (active tortfeasor) and D2 (passive party)
Always predicated on a relationship:
Employer-employee (resp. superior).
Employer vicariously liable for torts of employee, provided the employee was acting w/in scope of employment.
--Tend to test on scope of employment.
- --Generally, intentional torts are outside scope. Exceptions:
- ---Force is part of the job description, abuse of force is within scope of employment (security guard; bouncer).
- ---Job generates tension b/t employees and customers (repo men).
- ---Misguided effort to advance the employer’s interests (false imprisonment where security guard searches every customer).
- No punitive unless:
- (1) employer grossly negligent in hiring;
- (2) employee entrusted w/ general management; or
- (3) employer ratified/authorized.
- Hirer-independent Kr. Generally, no vicarious liability.
- --Exception: a land possessor will be vic liable if an independent Kr injures an invitee.
- (shop owner hires painter; not liable for painter driving to store, but liable for painter dropping paint can on customer)
- Auto owners-Auto drivers. Generally, no vic liability.
- --Exception: lend someone your car so they can do an errand for you, they are your agent, and you are vic liable. A principal is always liable for torts of agent.
- “Permissive use state.” Vic liable for anyone driving your car with your permission.
- --Presumption of permission (D would have to rebut presumption if car was stolen)
- --Exception: Rental car companies are not vic liable for renters. Federal statute trumps NY rule.
- Parent-child. Parents not liable for the torts of their children.
- Exception: statutory liability for willful property torts of children, but only up to modest dollar amounts (somewhere around 5 grand).
- Dram Shop Statute. Vendor who unlawfully supplies intoxicated vendee is liable to 3Ps.
- Unlawfully=visibly intoxicated or under 21.
- Watch for active tortfeasors!
- (D leaves gun out for infant who shoots neighbor. D not liable for tort of child; but actively negligent for leaving gun out).
- Even where one of these relationships arises, don’t jump straight to vic lia mindset. Ask if any possibility of direct liability.