Slide 1

TORTSPRESENTATION

Mr. Yogesh Pratap Singh Abhishek Tripathy --03Mayuri --78Praveen Kumar --41

GUIDED BYPresented By-:KIIT LAW SCHOOL1

EMERGING ISSUES AND TRENDS OF VICARIOUS LIABILITY2WE HAVE USED DOCTRINAIRE METHODS OF RESEARCH IN OUR PROJECT.

PROJECT IS DESCRIPTIVE AND ANALYTICAL IN NATURE .

METHODOLOGYIntroduction To Vicarious LiabilityDefinition Of Vicarious LiabilityEssential Elements To Establish Vicarious LiabilityJustification Of Vicarious LiabilityAn Overview Of The Existing TrendsSome Of The Emerging Trends And IssuesParental LiabilityMotor Vehicle LiabilityUse Of Communicational DevicesProfessional LiabilityLiability Of Sports ClubsLiability of non-profit organizationConclusionRecommendationsBibliography

CHAPTERIZATION4 Vicarious liability is a form of secondary liability that arises because of the the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that has a "right, ability or duty to control" the activities of a violator.

VICARIOUS LIABILITY5Special relation between who is held responsible and who has committed the act.

The act should be during the course of employment.ESSENTIAL ELEMENTS TO ESTABLISH VICARIOUS LIABILITY

6REASON FOR EXISTENCEHistorical Reason- Lack of identity for slaves

Legal Reason-

Qui Facit Per Alium Facit Per Se (The act done by me on your behalf is not mine)

Public Policy- Respondent SuperiorREASON FOR EXISTENCE7An Overview Of The Existing TrendsEMPLOYERS LIABILITY Employers are vicariously liable for negligent acts or omissions by their employees in the course of employment.

For an act to be considered within the course of employment it must either be an authorized act or closely connected to an authorized act.

8HOSPITALS

They are liable for the negligence of their staffs.

LIABILITY OF STATE State can be held liable for:

Violation of Common Law Principles.Statutory Violations.Violation of public duties.Wrong done by its employees during the course of employment.

9MASTERS LIABILITY A master can be held liable for:

Carelessness of servant.Mistake of a servant.Willful wrong of the servant.Theft by a servant.Damage to goods bailed.Fraud of the servant Common Employment

PARTNERS LIABILITY

Partners and the firm is liable for the wrongful acts or torts committed by the partners during the course of business for which they have agreed to be partners as their relation is similar to principal agent relationship.

10 EMERGING TRENDS Use of communicational devices.

Professional liability. Parental Liability.

Motor Vehicle Liability.

Liability of Sports Clubs.

Liability of Non-Profitable Organization.

EMERGING TRENDS & ISSUES 11Application of Negligence Doctrine to our Technological Society

The liability of employer creeps in when it can be proved that the injuries sustained by the plaintiff are due to an employees use of a communicational device in the course of his/her employment.Use of Communicational Device12In the summer of 2000, an associate of a Virginia law firm who was driving and talking to clients on her cell phone.

She collided with a truck and killed a young girl. Her law firm is currently involved in a civil suit brought by the family of the victim which claims that the law firm is vicariously liable for the accident caused by the associate.

RELEATED LEGAL PROCEEDINGS13Related Legal Proceedings In 1999 an investment banking firm paid US $ 500000 to settle a lawsuit launched after one of its broker driving while conducting business affairs on his cell phone struck and killed a motorcyclist. The cell phone was provided by the Firm.Related Legal Proceedings14Related Legal ProceedingsIn Minnesota, an employer was held not liable when an employee struck another car as she was reaching for her cell phone in response to her daughter's call.

In that case, the jury took the position that using the cell phone for her personal work was not part of her job, even though the cell phone was provided by her employer.Related Legal Proceedings15 The two case are distinguishable from each other because here the use of the phone was not for business purposes.

The decision would have been quite different had the call been from the employer or a client.

Difference .16One of the reasons for Vicarious Liability is that the employer has a deeper pocket.

Non-profit organizations should not be held liable because they cannot be attributed a deeper pocket.

But, recently in some of the judgments pronounced such organizations have been assigned liability for wrongful acts committed by the employees.LIABILITY OF NON-PROFITABLE ORGANIZATION17Related Legal Proceedings Bazley v Curry [1999]2 S.C.R. 534

The appellant Foundation, a nonprofit organization, operated two residential care facilities for the treatment of emotionally troubled children. As substitute parent, it practiced total intervention in all aspects of the lives of the children it cared for. The Foundation hired C, a pedophile, to work in one of its homes. The Foundation did not know he was a pedophile. After investigating a complaint about C, and verifying that he had abused a child in one of its homes, B, the respondent, sued the Foundation for compensation for the injury he suffered while in its care.

The chambers judge found that the organization was vicariously liable and the Court of Appeal upheld that decision.Related Legal Proceedings18So, the employers are vicariously liable for the acts authorized by the employer and unauthorized acts so connected with authorized acts that they may be regarded as improper modes of doing authorized acts.

19 Jacobi v. Griffiths

In this case, Boys and Girls Club, a non-profit organization incorporated under the Societies Act, employed the respondent G as Program Director. Children in the club were sexually abused by the employee at his home and the assaults were not in the due course of employment. So, there was a question as to whether the firm can be held vicariously liable.

In the decision it was held that the firm was vicariously Liable because it was only because he was an employee of that firm that he had the opportunity to commit the crime.

Related Legal Proceedings20Parents are one who have parental rights and responsibilities for thechild and include the residential parents and legal custodians.

Here the liability is because of the damage your child inflicts on someone else. Your responsibility comes from the parent-child relationship and the expectation of the control over your child.

Parental Responsibility laws differ from state to state.

Parental Liability21ARMS STORAGE LIABILITY

SHOPLIFTING

INTERNET ACESS AND COMPUTER HACKING

SOME COMMON PARENTAL LIABILITIES22 The California Court of Appeals upheld a verdict against the parents of juvenile computer hackers who accessed the phone company's network in order to make long-distance calls without cost.

( Thrifty-Tel v. Bezenek )

Related Legal Proceedings23

At a suburban Houston high school a girl was wounded when a gun kept in the backpack by a fellow student discharged in the middle of biology class.

Three St. Charles, Missouri sixth-graders were caught making a "hit list" and plotting to kill classmates via a sniper attack on the last day of school. ( Cases pending )Related Legal Proceedings24 Its a mans game

Players testing the boundary between fair and foul play is part and parcel of a game. However, following a recent case

(Gravil v. Carroll)

in which the Court of Appeal held for the first time that a rugby club was vicariously liable for a tort committed by one of its players, clubs must now ensure that they do not turn a blind eye to such behavior.

Liability of Sports Club25 It is well established that for an employer to be vicariously liable for a tort committed by one of its employees A three stage test must be conducted:

The employee must have committed an actionable tort. *Caldwell v Maguire and Fitzgerald

The employee who has committed the tort must have a contract of employment with his employer. *Gravil v. Carroll

The tort must be committed during the course of the individuals employment, something which has proved to be a real sticking point for the courts when placed in a sporting context.

26In Gravil v. Carroll [2008] EWCA Civ 689

The courts belief was that the incident could fairly be regarded as an ordinary (though undesirable) incident of a rugby match, in which the player was participating in performance of his duties as an employee. The judges clearly did not feel that the player had gone off on a frolic of his own or acted out the assault with regard to a personal matter affecting his personal interests, for example a spontaneous act of retributive justice.

27PROFESSIONAL LIABILITY MISTAKE OF A LAWYER TAKES A MAN SIX FEET HIGH AND MISTAKE OF A DOCTOR TAKES A MAN SIX FEET LOW.*

PROFESSIONAL LIABILITY28VICARIOUS LIABILITY FOR LAWYERS What if a Lawyer is working for a firm or for a corporate house?

Can the Employer organization be held vicariously liable for the tort committed by the employed lawyer?

YES!!!VICARIOUS LIABILITY FOR LAWYERS29 Under modern statutes, corporations face vicarious liability for the criminal conduct of certain employees.

Such liability is defended as being direct rather than vicarious.

Vicarious Liability for corporations is a justifiable departure from the basic principles because the penalties involve only fines rather than imprisonment and send less of a message of moral condemnation. It is argued that the corporation is not a true person, and the people most directly affected, the shareholders; suffer losses more akin to civil than criminal penalties.

CORPORATIONS30 Hunt v. Sutton Group Incentive reality

In Sutton, the plaintiff employee consumed alcohol during a holiday party on her employer's premises. Later, she stopped at a bar where she continued to consume alcoholic beverages. While driving home later that night, she sustained severe injuries when she lost control of her vehicle on a slippery road.

At trial, her employer was held 25% liable for her damages, as the court agreed with the plaintiff's contention that Sutton Realty should have known that she was intoxicated and that she would likely drive, creating a duty to take more steps than it did to protect her.

The effects of the trial decision continue to haunt employers, who have become wary of being held liable for the actions of their employees.

RELATED LEGAL PROCEEDINGS31In 1999, the Supreme Court of Canada handed down two highly publicized decisions which held that vicarious liability can be imposed on an employer for certain unlawful acts committed by an employee, even when the employer has itself not acted negligently.

In essence, the Supreme Court stated that where injuries are sustained as a result of actions performed by an employee in the course of his or her duties, liability may attach to the employer.32Motor Vehicle Liability Even though they are not at fault, vehicle leasing and rental companies as legal owners of the vehicles can be held fully liable for the damage that is caused by their customers even when these companies have absolutely no control over or say in how their customers use their vehicles.

Motor Vehicle Liability33In recent years leasing and renting have become very popular and cost effective methods of acquiring a vehicle. Because lessors and rental companies are the legal owners of vehicles, judgments against them have grown dramatically in recent years as damage awards have increased. The unfairness in the imposition of vicarious liability is most clearly demonstrated in cases involving catastrophic motor vehicle accidents where potential damage awards exceed third party liability limits and where the lessor/renter is seen as having the "deep pocket".

34 Morrison v. Grieg [2007] O.J. No.225 (Ont S.C.J)

The judgment was rendered in Ontario, based on its prior law, totaled over $23 million for two catastrophically injured plaintiffs.

Yeung v. Au.

In British Columbia, this May 2006 decision of the Court of Appeal resulted in a $7.5 million judgment.

RELATED LEGAL PROCEEDINGS35As a result, the most senior levels of management of auto manufacturers questioned their decision to lease vehicles, which was the impetus for legislative change.

In August 2005, the United States Congress passed a highway bill eliminating vicarious liability for lessors and rental companies for personal injury and property damage arising from the negligent use of a leased or rented truck or passenger car.

Within the past year, some countries have capped this vicarious liability at $1 million, which is effectively offset by a contractual requirement that lease and rental customers carry at least $1 million in insurance coverage.

36Laws that punish a defendant's own act or omission that allows another person to do something unlawful impose direct liability, not vicarious liability, although such laws are sometimes mislabeled.

Parents sometimes face criminal liability for allowing their minor children to use guns or automobiles or to skip school.

These crimes are examples of direct liability, not vicarious liability, as the statutes explicitly hold the parent liable for the parent's own act or omission that caused the harm, rather than for the child's conduct.

CONCLUSION37 So, Vicarious Liability is a good tool for the injured to receive proper compensation without creating an actual burden.

Till torts exist it is difficult to remove this liability. Trends in this field are growing and are likely to increase with industrialization and rapid changes in the employer employee relationships.

RECOMMENDATIONS

38BOOKS REFERREDRatanlal Dhirajlal, Law of Torts, 25th Edition ,by Singh G.P.Law of Tort, Pearson Education, 8th Edition, by Cooke, John.Winfield & Jolowicz on Tort, 17th Edition .A Text-book of the law, Sweet & Maxwell, 1937, by Winfield P.H.Cases and materials on law of torts ,2nd edition .by Samuel Geoffy. AUTHORITIES CITEDAll England Reports [AER].All India Reports [AIR].Supreme Court Cases [SCC].

WEBITES VISITEDwww.ogilvyrenault.com/fr/centreDeResources_1428.htm - 17k www.sylviainsurance.com/pdf/cell-phone-while-driving.pdf en.wikipedia.org/wik/Vicarious_liability - 47k

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