Vicarious Liability
The Parties and Vicarious Liability
1. Plaintiff
a. There are certain characteristic that are look at when calculating damages
b. IF a Minor
i. Money to recover goes into trust(pain and suffering)
ii. Medical cost go to parents
c. Recoveries from deaths
i. Victims interest in her own bodily security
1. The estate of deceased brings suit(Survival Statute)
ii. Dependant interest in continued economic support
1. Next of kin bring suit(Wrongful death Statutes
iii. Executor established by will and by state
d. Hammontree
i. Co plaintiff(husband) sued for loss of consortium
2. Defendants
a. Liable for the tort acts of another
Chistensen v. Swenson
Birkner three Criteria
1. The employees conduct must be the general kind the employee is hired to perform
2. Employees conduct must occur substantially with in hours and ordinary spatial
boundaries of employment
3. Conduct must be motivated, at least in part, of serving the employers interest
FACTS:
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Swenson was an employee at Burns, a security guard at gate 4
Swenson was in a car accident while obtaining lunch from close café in her allotted 1015 break, not on Burns property
Burns has an unscheduled break policy and allows employees to have 10-15 minute
break during continuous shift
Café order sign is post by gate 4 (clearly visible) So employees and can phone in order
when they do not bring lunch
Facts applied to Birkner
1. Reasonable minds could differ because
a) Burn employeed her to be “seen and see”
a. Traveling to café could serve this purpose
b. HOWEVER, another guard stated it as a personal endeavor
b) Menu was posted in plain view of gate 4 tactfully stationed
2. Hours and spatial bounderies of employment
a) Accident occurred within hours Sweson was working
b) She was trying to get lunch at closest restaurant to gate
a. Company had no policies of leaving post in car on break
3. Conduct motivated by the purpose of serving employeers interest
a) Burns manager admit the break promote better working conditions
b) Burns “speedy and efficient break” to maximie time at gate
HOLDING:
Summary Judgement is inappropriate because reasonable could differ as to whether Sweson
was acting within the scope of her employment when the accident occurred
RULE OF LAW
An employer may be held vicariously liable for an employee’s actions that occur
within the scope of employment.
ISSUE:
If an employee isn’t on the company property, can the employer be held vicariously liable for accident
that occurred during working hours?
1. What would happen if employee was ordered not to do somethings but did it anyways and caused an
accident?
2. Restatement 7.07(2)
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Keywords are engaging in a course of conduct under employeers control. Lunches break were
under the control, Burns stated that only 10-15 minutes breaks could be taken for “eating and
restroom”
3.Why do courts and restatements frame their inquiries as they do? What is the underling justification
for respondeat superior?
4. Schwartz 3 economic justification of Vicarious Liability
1. Incentive for being selective on employees hires and how their manages
2. Allows employers to discline employees when acting negligently and exposing company to
liability
3. Alternatives to reducing liability
5. Third party Vicarious Liability
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Letting a child drive your car, if in accident owner, not child is liable
Statutes and common law decide these in the state
6. Negligent conduct by an employee that is intentional like “assault”
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Acts based on personal motives, in no way connected to business OR
Unusual, unprovoked, outrageous are consider to out of scope in Birken test
7. Do consideration about indemnity affect your conclusion about the basic Doctrine?
8. Employer Negligence
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Bar employee with history of violence punched guy in face
o Court concluded the bar owner acted negligently by not properly screening resumes
How does this differ for Respondeat Superior?
Employers and Independent Contractor Distinction
 Independent contractors are not vicariously liable like
 Hirer of an agent may retain broad general supervision over the jib without
turning the relationship into employer/employee
Roessler v. Novak
FACTS:
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Roessler was misdiagnosed which lead to him having complication after a surgery and
had to stay hospitalized for 2 ½ months
The doctor that misdiagnosed him worked at Sarasota Hospital on that day
Procedural History
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Roessler alleges that the doctor who misdiagnosied him was an agent of Sarasota so
Sarasota Hospital is Vicariously Liable for the negligence of said doctor
Hospital states that Doctor is a independent contractor, not agent
o  therefore Hospital is not Liable
Hospital moved for summary judgment and was granted Found in their favor
Issue:
May a hospital be held vicariously liable for the acts of a physician who is an
independent contractor?
HOLDING:
Sarasota Memorial should be vicariously liable under the apparent agency theory
Reasoning:
 Roessler went to Sarasota ER, the hospital provided him with health care
services and providers.
 Roessler accepted the doctor provided to him by the hospital
o  representative authority?
DIS:
 Summary Judgement reversed and remand
Concurring:
 Supreme court needs to simplify or legislation needs to be created to
simplify rule of vicarious liable of independent contractors other than the
apparent authority doctrine
 Different patients can have different thoughts and it would be hard for
courts to pick and choose
Rule:
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A principle may be held liable for the acts of its (non employee) agent that are within
the course and scope of the Agency
o A principle may be liable to third party acts of its agent which are in agents
apparent authority
o Apparent authority: is authority which a principal knowingly tolerates or permits,
or which the principle by its actions or words hold the agent out as possessing.
Apparent agency: exist ONLY IF all three of the following elements are present:
1. Representation by purported principle(lead people to believe that they were an
employee)
2. A reliance on that representation by a third party(Plaintiff relied on that”white
coat that said Sarasota Hospital”)
3. Change in position by the third party in reliance on the representation
a. In order to not rely, you have to refuse service
4. ** principles creates the appearance of an agency itself
Chapter 3&4 for Monday
Direct Liability
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Negligent credentials
Un clean conditions
Not enough people on staff
Unsupervised doctors
Ostensible Agency:
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There is an essence that there was an employee/employer relationship
Three different liability claims
Borrowed service : is a defense; used a lot in hospital with nurses
Torts Problem 1:
Direct Liability: not supervising him, not looking at credential
We don’t know if he is a employee or an independent contractor
The traditional theory liability: whe you steal that is an intentional tort, so is getting drunk at
work. SO to defend sears you claim intentional tort which collapses the traditional theory
Carol covers up sign
When you have problems state the facts we don’t know and then talk about who if you had
those facts
Carols needs to prove two committed a tort(5 elements) and that he was an employee
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Duty special relationship because employee/employer
Breach was in contract when he broke the fridge
When she covered up warning, she took part in the tort
If he is an independent contract:
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Obstensible Agency
Apparent Agent
 He worked for sear
 If she had know he didn’t work for sears that she would turn him
away*** show with historically evidence **She trust sears and if
she thinks sear vets employees, had she known she would turned
him away***
SUING CAROL:
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Because she in control and owns the property
Covered up the sign warning about impact