Vicarious Liability, Joint Tortfeasors, and Immunities

Vicarious Liability: Respondeat Superior and Beyond

Vicarious liability holds one party liable for another's tort because of their relationship, without the first party being personally at fault. The dominant form is respondeat superior: an employer is liable for torts committed by an employee within the scope of employment.

The central question is scope of employment:

• Detour vs. frolic: A minor deviation from the employer's business (a 'detour') remains within scope; a substantial, personal departure (a 'frolic') falls outside it, relieving the employer.
• Intentional torts are usually outside scope — but the employer is liable where force is inherent in the job (a bouncer, a security guard), where the tort is in furtherance of the employer's business, or where the employer authorized it.
• Commute (going-and-coming) rule: Ordinarily an employee commuting to and from work is outside scope — but exceptions apply where the employee runs a special errand for the employer or the employer benefits from the travel.

Independent contractors: A principal is generally NOT vicariously liable for the torts of an independent contractor (the hallmark is the principal's lack of right to control the manner of work). Exceptions impose liability anyway: (1) non-delegable duties (e.g., a business's duty to keep its premises safe for invitees, a duty to maintain safe instrumentalities); and (2) inherently dangerous activities (the contractor's blasting). A principal may also be directly liable for negligent hiring, retention, or supervision.

Other vicarious-liability relationships:

• Partners and joint venturers are vicariously liable for torts committed in the scope of the partnership/venture.
• Automobile owners: at common law, an owner is not vicariously liable for a permissive driver's torts, but the family-purpose doctrine (and California's permissive-use statute, Veh. Code § 17150, with a statutory damages cap) impose owner liability.
• Parents are not vicariously liable for a child's torts at common law, though statutes impose limited liability for a child's willful misconduct (Cal. Civ. Code § 1714.1).

Joint Tortfeasors, Contribution, and Indemnity

When multiple defendants cause a single, indivisible injury, the law must apportion responsibility.

Joint and several liability: At common law, where two or more tortfeasors cause an indivisible harm, each is liable for the entire judgment, and the plaintiff may collect the full amount from any one of them (subject to a single satisfaction). This protects the plaintiff against an insolvent defendant. Where the harm is divisible, each defendant is liable only for the portion she caused.

California's Proposition 51 (Civ. Code § 1431.2) modifies pure joint-and-several liability for multi-defendant cases:

So a 10%-at-fault defendant can be made to pay 100% of the plaintiff's economic loss but only 10% of the pain-and-suffering award.

Contribution: A defendant who pays more than her fair share may seek contribution from co-tortfeasors. Most states (and California) use comparative contribution, recovering from each co-tortfeasor in proportion to its relative fault (older 'pro rata' contribution split equally). Contribution is generally unavailable against a defendant who intentionally caused the harm, and a good-faith settlement may bar contribution claims against the settling tortfeasor (Cal. Code Civ. Proc. § 877).

Indemnity shifts the entire loss from one tortfeasor to another, rather than apportioning it. It applies where (1) one party is only vicariously or passively liable while another is actively at fault (a faultless employer indemnified by the negligent employee; a faultless retailer indemnified by the manufacturer in a products-liability chain), or (2) by contract. California also recognizes comparative (partial) equitable indemnity, which in practice operates much like comparative contribution among tortfeasors.

Tort Immunities

Traditional immunities once barred entire categories of suits; most have eroded or been abolished, but residual rules remain testable.

Intra-family immunities:

• Interspousal immunity is abolished in California and most states — spouses may sue each other in tort.
• Parent-child immunity is largely abolished or sharply limited; a child may generally sue a parent for tortious conduct, though some states retain immunity for the exercise of parental authority and discretion (ordinary parenting decisions).

Charitable immunity is essentially abolished nationwide — charities are liable like any other defendant.

Governmental (sovereign) immunity is the most important survivor, but it is waived in part by tort claims acts:

• Federal Tort Claims Act (FTCA): waives federal immunity for many negligent torts but retains immunity for discretionary functions (policy-level decisions), certain intentional torts, and others.
• California Government Claims Act (Gov. Code §§ 810 et seq.): public entities are immune except as provided by statute; the Act establishes liability (e.g., for dangerous conditions of public property, and vicariously for employees acting within scope) but preserves immunity for discretionary acts and requires a claim-presentation prerequisite — the plaintiff must file an administrative claim (generally within 6 months for personal-injury/property claims) before suing.
• Public officials retain immunity for discretionary acts within their authority but may be liable for ministerial acts.

Essay roadmap for allocation problems: (1) Identify each tortfeasor and theory; (2) determine vicarious liability (respondeat superior — scope? independent contractor exceptions?); (3) apply joint-and-several vs. Proposition 51 several liability (separate economic from non-economic damages); (4) resolve contribution/indemnity among defendants;

(5) check immunities (especially the Government Claims Act's claim-presentation deadline). MBE trap: an employer is liable for an employee's negligent detour but NOT for a personal frolic or an unauthorized intentional tort outside the scope — read the facts for whether the employee served the employer's purpose.