LEGAL ISSUES

Tort Liability Basics: Strict, Vicarious, and Joint Liability

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Strict Liability

Strict liability torts, which do not require a finding of intent or negligence, are primarily confined to ultrahazardous activities and product liability cases.

An activity is ultrahazardous if it is so inherently dangerous that even the highest degree of care will not eliminate the risk of harm. If someone is injured because of such activity, the defendant is liable regardless of the level of care he or she exercised.

Examples - Ultrahazardous Activities
  • Handling, storing, transporting, or using explosives. California Health & Safety Code § 12005.5.
  • Causing or permitting any hazardous substance to be discharged in or on any of the waters of the state where it creates a condition of pollution or nuisance. California Water Code § 13350(b).
  • Causing or permitting oil to be discharged. California Government Code § 8670.67.5.

In determining whether an activity is abnormally dangerous so as to give rise to strict liability, a court will consider the (a) existence of a high degree of risk of some harm to the person, land or chattels of others;(b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520.

Vicarious Liability

Vicarious liability imposes liability on one person for a tortious act committed by another. There are a number of contexts in which this arises.

Respondeat Superior

Under the doctrine of respondeat superior, an employer is liable for an employee's torts, including intentional torts, if the employee was acting within the scope of employment. To establish that the employee's conduct was within the scope of employment: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform.

Example - California Civil Code § 2338
Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.

An example of this is if an employee driving an automobile struck a pedestrian during standard business hours. Whether the employer will be liable in this situation will depend on whether the employee was acting within the scope of his employment. For example, if the accident occurred while the employee was driving from his office to a client's site, the employer will likely be liable. On the other hand, if the accident occurred while the employee was leaving a client's site and heading across town in the opposite direction of his office to purchase football tickets for himself, the employer might not be held liable.

Independent Contractors

In contrast, a defendant who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is a person who performs services for another person under an express or implied agreement and who is not subject to the other's control, or right to control, over the manner and means of performing the services.

However, this exception does not apply to ultrahazardous activities or nondelegable duties. A duty is nondelegable if a defendant is directed by a statute, ordinance, or safety order to provide certain safeguards or precautions or to maintain certain equipment in a specified condition.

Joint and Several Liability

If two or more defendants are found liable for an indivisible injury, the defendants will be held jointly and severally liable. This means that each defendant is liable for the entire award regardless of the individual degree of fault. Because a so-called "deep pocket" defendant may be held liable for an entire damage award even if such a defendant is only fractionally liable, California has modified the doctrine of joint and several liability for personal injury cases. To apportion financial liability closer to the degree of fault, California does not apply several liability for non-economic damages.

Example - California Civil Code § 1431.2
(a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.

(b) (1) For purposes of this section, the term "economic damages" means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.

(2) For the purposes of this section, the term "non-economic damages" means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.

Copyright 1999 FindLaw Inc.

Last updated: Nov 1, 1999




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