AGENCY: LIABILITY FOR TORTS AND CRIMES

Chapter 19

THE STORY:A carrier for a well known service delivery company was delivering packages out in the West Herndon area. He had a break coming, so he decided to stop into Starbucks and get a latte. On his way out of the parking lot, he failed to stop, and went colliding into a car carrying a women and two young children. Although the children were alright, the women driver claimed to suffer neck injuries and her car was badly damaged. She sued the delivery company for a total sum of $450,000 dollars claiming bodily injury and compensatory damages.

WHO’S LIABLE?1. Why would the company be held

liable?2. Would the carrier driver be responsible

and liable?3. Since the carrier was driving, was he

still on his break or back on the job? 4. Since the carrier had the company shirt

and logo patch, does he represent the company?

5. Should the carrier be responsible solely for his actions?

6. Is the sum of $450,000 dollars, claiming

bodily injury and compensatory damages, reasonable in this case?

.

SERVANT AND MASTER RELATIONSHIPS:

Master = Employer = Respondeat Superior

Respondeat Superior: Let the master answer! The master is held responsible for the servants conduct

Servant = EmployeeJoint and Several = both master and

servant are held responsible and liable for the servants conduct.

RESPONDEAT SUPERIOR JUSTIFICATIONS:

The master will make a better choice next time in servants

The master will be more careful in the supervisory role.

The liability of a servant is the cost of conducting business.

The master can purchase liability insurance.

The master can afford the costs.

DEFINITIONS:

Vicarious Liability: Legal responsibility for the wrong committed by another person.

Strict Liability: Liability for an action because it occurred and caused damage, not because it is the fault of the person who must pay.

“Deep Pockets”: Expression used to describe those who have large sums of money.

THINGS TO REMEMBER:

No one factor controls the court decision.

Every court case is different, but can be based and judged on precedent setting cases.

Fact situations that seem very similar may result in different decisions.

The “Scope of Employment” issue will always play a role in the decision of the case.

SCOPE OF EMPLOYMENT

Determining whether a servant is within the scope of his or her employment.

THE STORY…Jenny rides her bike to work from college every day. One day after school, she couldn’t find a place to lock up her bike because the bike rack was full. She decided to lock the bike up to a city meter just outside the shop where she works.

Her employer saw Jenny’s bike there but didn’t mention to her that it was against the cities ordinance to lock bikes up to meters. A police officer saw the bike and decided to write the

ticket out to the shop owner, rather than to Jenny. The officer claimed that since the owner knew it was against city ordinance, and Jenny was officially at work, then the shop owner should pay for the ticket.Was the officer right?

WHO PAYS THE TICKET? Again, was the officer right in this case? Should the officer just asked Jenny to move her bike and not written the ticket?

Should the shop owner have told Jenny to move her bike?

Should Jenny have known not to lock her bike up the the meter?

Should Jenny pay the ticket even though it is made out to the shop owner?

Since Jenny was at work, does this fall under “Scope of Employment” guidelines?

THE RESTATEMENT (SECOND) OF AGENCY INDICATES THE FACTORS THAT SHOULD AFFECT THE DETERMINATION OF WHETHER A SERVANT IS WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT. THE FACTORS INCLUDE: 

Employee: Time and place of

occurrence. Failure to follow

directions. Failure to Act Acting on own accord

outside of the duties and responsibilities of the job.

Questions regarding the Employer’s Actions Include:

Failure to Act Responsibility of

the servant to whom? (What if there is more than one boss?)

INDEMNIFICATION

Who Pays What?

HERE’S THE STORY… Greg believed in the old fashioned way of giving

service at the gas station. He treated customers like he wanted to be treated. He would wipe the windows and check to make sure that customer’s tires were always filled with the proper air pressure, and ready for the road.

One day, as he was working on a customer’s car, he noticed that the tires seemed a bit low. He filled them up to the regular level, not realizing that these tires were Italian, and meant to have less pressure in them then tires made in the U.S. Shortly after the customer leaves, the tires blow, causing the car to spin out of control, killing the driver and the passenger.

Who’s fault was this?

WHERE WAS THE WRONG COMMITTED? Was a crime committed? Should Greg have realized that these

tires were not made in the states? Should that have been reason for him to question?

Should the driver have said something to Greg about his tires?

Did Greg commit a crime unknowingly? Should the company Greg works for be

sued? Should the owner be sued for not

training Greg properly? Could this have been avoided?

ANALYSIS OF A SERVANT’S TORTS: Was the person acting as a servant for the

hiring party? Did the servant commit a tort? Was the servant acting within the course and

scope of the job? Is the master entitled to indemnification from

the servant? Is the servant entitled to indemnification from the master?

CRIMES AND INTENTIONAL TORTS: Battery: Unauthorized touching of another person without legal justification or consent.

Conspiracy: A plan to engage in criminal behavior involving two or more persons.

Solicitation: Influencing a person to engage in criminal activity.

Accessory to Crime: Assistance in a crime. i.e., driving the “get-away” car.

Indemnification: The right to be repaid by a servant, if the master has had to pay for his servant’s crime.

INJURY ON THE JOB

Worker’s Compensation

HERE’S THE STORY…Karen is a Personal Fitness Trainer for one of the well known fitness centers in town. She has worked as a trainer for six years, and is ready for a promotion.

Karen was recently assigned as a personal fitness trainer to a new club member. Jim, Karen’s boss, felt that this particular individual needed a male trainer, due to his size, but for fear of being seen as a male chauvinist, he decided to let Karen have him. During a recent session, Karen was assisting the new member, and while spotting him on the free-weights, she hurt her back. She is now claiming that her boss should have known better, and should have let one of the male fitness trainers handle this new member. Does Karen have a case?

INSULT TO INJURY? Should Karen have said something from the beginning regarding this new member?

Could Karen have felt that because she was up for a promotion, her refusal to work with this new member could have been detrimental?

Should Karen claim workers compensation? Should Jim have given Karen the new member or should he have given this new member to a male trainer, despite how it looked?

Does Karen have a lawsuit against Jim? Against the company?

INJURY ON THE JOB:

Under common law, if an employee is hurt at work, the employer can utilize a number of defenses to avoid an obligation to the employee:

These are two such defenses…

Negligence by the employee The employee’s assumption of the risk

WORKER’S COMPENSATION ELIGIBILITY:

Must prove that the injury occurred on the job.

The injury was caused in the course and scope of the job.

Some statutes vary:Some cover only major industrial occupations.Some exclude small shops w/few employeesSome exclude injuries caused intentionally by the employer or other workers.

WILD/DANGEROUS ANIMALS AND STRICT LIABILITY

VICIOUS ATTACK

One of the chimps shot in the attack.

http://www.ktvu.com/news/4258391/detail.html

WILD/DANGEROUS ANIMALS AND STRICT LIABILITY:

The owner of the animal has a duty of care to anyone who might possibly come in contact with the animal.

The issue of “foreseeability” always plays a role because there is always an issue of the animal escaping. Therefore great care and caution is of the utmost importance when handling the animal as it interfaces with the public.

All parties will be held liable despite the issue of fault. Strict Liability is imposed.

Warning signs, although helpful to those who heed them, does not indemnify the owner/handler from liability. (Joint and Several)

DOG LAWS…..

http://www.dogbitelaw.com/

WEBSITES TO VIEW:http://www.eff.org/pub/legal.com

http://wwwsecure.law.cornell.edu/topics/workers_Compensation.html.com

http://www.workcompsite.com

http://www.getareferral.com

http://www.opm.gov/oca/index.htm