What Is the Controlling Law, Testimony and Liability - Research Paper Example

Vicarious Liability: Whom to Sue? In the instant case, the injured parties would be well within their legal rights to consider seeking damages from the ostentatious resort as well as from Tex and Rex. The legal bases for including the resort as a defendant in the civil action derive from well-established notions of agency law and have been expressed in legal parlance as theories known as vicarious liability, joint and several types of liability, and/or Respondeat Superior. Given the extant of the damages suffered, therefore, plaintiffs would be well-advised to name both the alleged agents and the resort as defendants. As an initial matter, vicarious liability refers to a type of liability that results from the commission of negligent acts or criminal acts committed by one or more persons that is, by law, thereafter shared or assigned to another person or other persons. (Hill v. McQueen, 1951: 484-485). Significantly, this liability via attribution is imposed vertically; more specifically, a person is subject to liability when a person or persons under its control cause some type of injury through negligent behavior, reckless behavior, or intentional behavior. In this case, Tex and Rex were sponsored by the resort and this sponsorship was made known to potential customers. In addition, the injuries sustained resulted from the negligence, and perhaps, reckless disregard of the resort’s agents, Tex and Rex. They knew, for example, that Molly had certain potentially hazardous inclinations; they knew that the injured party was ignorant when it came to horses; and finally, as experienced stable hands, they knew that injuries could result from placing inexperienced riders on such a horse. The resort might argue that Tex and Rex acted in excess of their duties or authority; however, an important principle of vicarious liability holds that “An employer may be held responsible for the tort committed by the employee where the act is incidental to and done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrong” (Ada-Konawa Bridge Co. v. Cargo, 1932: 7). The plaintiffs, as a result, should not be deterred by allegations that Tex and Rex acted in excess of their authority because this type of liability can still vest and include the resort as a responsible party. The problem, in the instant case, is whether Tex and Rex are to be classified as employees acting within the scope of employment or whether they are, in fact, independent contractors simply providing a service under their own control. If the latter then the resort can be held liable, but if the former then agency principles provide an arguable escape route for the resort. Some further information needs to be determined. For, example, the facts refer to a sponsorship agreement or relationship between the stable hands and the resort. Does this sponsorship arrangement rise to the level of an employer-employee relationship or did Tex and Rex retain control over their enterprise so that they will be classified as independent contractors? These are the issues that need to be examined in more detail; in the meantime, however, the resort ought to be named as a defendant because they are a deep pocket and because they can arguably be said to have negligently entrusted the horse riding operations to two careless characters. Reimbursement Options: What is the Controlling Law? There is no question, should the resort be held liable, that it would want to consider whether or not it would be able to seek reimbursement from Tex and Rex. The issue is complicated by the fact that different states and different legislative frameworks treat reimbursement rights in slightly different ways; for instance, as noted by a research study issued by the Congressional Budget Office: For injuries caused by more than one party, the question arises of how much liability to assign to each party. Courts generally use one of two rules in answering that question (although other approaches can be imagined). Under joint-and-several liability, any one injurer or subset of injurers can be held responsible for paying all of the damages. That individual or group often has the right to seek reimbursement from the remaining injurers. Under several liability, by contrast, the court determines the relative contribution of each injurer in causing the harm and holds each one responsible for only that proportion of the damages. In the past 20 years, many states have either eliminated joint-and-several liability under some or all circumstances or have restricted it in various ways--for example, by limiting it to certain types of damages or to injurers whose liability exceeds a certain percentage threshold (An Overview of Policy Options for Changing the Tort System, 2006: n.p.). What needs to be known is the current governing standards with respect to state law. If the applicable law relies on traditional notions of joint and several liability then the resort can be held responsible for paying all of the damages; as a consequence of being responsible for paying all of the damages, the resort may then have a corresponding right to seek reimbursement from Tex and Rex (Walt Disney World Co. v. Wood, 1986: 61-62). If the applicable state law, on the other hand, relies on a several liability framework, then there are different implications. First, the resort cannot be held responsible for all of the damages. Instead, the judge will determine the extant of each defendant’s culpability and assign a percentage of damages to each (Cleere v. United Parcel Service, Inc., 1983: 785-786). In this case, there can be no reimbursement because the judge allocates blame and therefore damages to each party. Given the fact that Tex and Rex would not appear to have much money, the plaintiffs will probably hope for a joint and several liability jurisdiction whereas the resort will hope for a several liability jurisdiction. These are issues that need to be explored and more information needs to be gathered in order to determine the controlling law. Testimony and Liability Again, whether the plaintiffs can secure witness testimony in exchange for promises to absolve that witness of liability for damages, depends on the jurisdiction. Where, for example, the jurisdiction is premised on joint and several liability, the resort can be ordered to pay all of the damages and they can then seek reimbursement. The right of reimbursement, therefore, belongs to the resort and it cannot be abrogated through a side-agreement between the plaintiffs and Tex. Tex would have to defend himself against the resort in the reimbursement action and the plaintiffs could not unilaterally grant any type of immunity to Tex. In a several liability jurisdiction, on the other hand, liability is determined by the court on a percentage basis. In such a case, where the resort would have no reimbursement option, the plaintiffs would have more flexibility with respect to Tex. In all likelihood, some liability would be assigned to Tex, because the other defendants would demand he be joined, but the plaintiffs could agree to settle for nearly nothing or not to enforce a judgment against Tex in exchange for his testimony. The benefit would be Tex’s testimony, but the loss would be the percentage of damages assigned to Tex. There are thus two issues that require the gathering of further information. First, what type of jurisdiction is this and, second, does a cost-benefit analysis suggest that insulating Tex from an enforcement of any judgment would increase the likelihood of establishing and winning the underlying civil action. Conclusion In the final analysis, much depends on the controlling law; in any event, because the resort is a deep pocket, being ostentatious and all, it should be named in the original papers. The plaintiffs will have to establish that Tex and Rex were employed, acting within the scope of their duties, and that the injuries sustained were as a result of negligence, reckless disregard, or intentional conduct. The plaintiffs will be best served if they can compel the resort to pay all of the damages and leave them to any reimbursement rights on their own. If, however, this is a several liability jurisdiction then the plaintiffs must determine whether Tex’s proffered testimony justifies sacrificing his share of the damages. More research needs to be done to clarify some of the aforementioned uncertainties. References Ada-Konawa Bridge Co. v. Cargo (1932). 21 P.2d 1. “An Overview of Policy Options for Changing the Tort System” (2006) in The Economics of U.S. Tort Liability: A Primer. Congressional Budget Office. Retrieved August 24, 2008 Hill v. McQueen (1951) 230 P.2d 483. Cleere v. United Parcel Service, Inc., (1983). 669 P.2d 785 Walt Disney World Co. v. Wood (1986). 489 So.2d 61 Read More