Limiting Future Tort Liability

Part II – Torts – Skills Assignment – Limiting Future Tort Liability

Part II Overview

You are the owner of a same-day delivery business, which has enjoyed immense recent success. You believe that the
biggest underlying reasons for your company’s success are your promises to accept any cargo and your guarantee of
“the speediest possible delivery.” Your company has grown to employ approximately 100 people (mostly drivers), and
you own a large fleet of approximately 75 delivery vehicles of various sizes and capabilities. You self-insure these
vehicles, i.e. you pay out of pocket for any damages caused by the drivers of your company vehicles.

Learning Outcomes:

• At the completion of Part II, students will be able to:
  • Understand and recognize the difference between causation in fact and proximate causation
  • Apply the defenses of contributory/comparative negligence, liability waivers, and assumption of the risk
  • Recognize when strict liability applies, and how it changes the determination of liability

Section 1: Vicarious Liability – Length: 1 page

Fact Pattern

As the owner of a successful business, your social circle is full of other business owners and executives. Lately you
have heard several of them discuss taking advantage of the “gig economy.” You know that “gig economy” generally
refers to a labor market in which most employees provide work on-demand, often as independent contractors. For the
past decade plus, these types of jobs have increased significantly. Because employers are liable for negligent acts
committed by their employees within the scope of business, while non-employees such as independent contractors are
not, you are interested in learning about the potential impact to your company’s tort liability exposure if you were to
change from your current traditional employer/employee business model to a “gig” model (using part-time, independent
contractors, who provide work on-demand).

Two-Part Question

As you know, the two most common issues/questions regarding whether respondeat superior applies involve the
scope of employment and the tortfeasor’s employment classification.

1. Regarding the scope of employment: Given cases like Christensen and Fiocco, how does the structure and environment of your business lead to extensive potential vicarious liability issues for your company?
2. Regarding employment classification: Reclassifying your employees as independent contractors would require you to treat them differently. Identify and discuss three potential negative impacts on the operation of your business, if you decided to make such a reclassification.

Section 2: Causation, Defenses & Damages – Length: 1-2 pages

Fact Pattern

You are unsure whether you are willing to treat employees differently, as would be required to reclassify them as independent contractors. However, through your connections you have become aware of a significant upcoming technological advancement in autonomous (self-driving) vehicle capability. This new technology would potentially allow you to replace your drivers with fully autonomous vehicles (AVs), significantly reducing your labor and employment costs, and potentially increasing your profitability. Unfortunately, AVs are currently not permitted by the laws of your state.

Question

You have connections in the state legislature, which you want to use to lobby for a new law permitting the use of fully autonomous vehicles. You plan to craft a proposed statute governing tort implications for the use of such vehicles.
To ensure that your proposal will be compelling, you decide to draft elements of what eventually will be included in your statute. Knowing that this statute should include the following sections, draft the following:

A definition of “reasonable care” for AVs.

The availability for punitive damages in accidents caused by AVs.

The factual causation test to be used in accidents involving AVs.

Any defenses to negligence that the vehicle owner could claim in accidents involving AVs.
For each of these sections, include a “policy note” explaining why you have written that section as you did.

Note: As you draft these sections, understand that the public will be aware of these efforts; therefore, you should attempt to balance the financial benefit to your company with the public’s perception.

Section 3: Strict Liability – Length: 2-3 paragraphs

Fact Pattern

You have learned that in certain circumstances, a strict liability standard may apply, rather than the negligence standard; such a standard makes it easier for a plaintiff to prove liability, because the “breach” element is presumed to be satisfied.

Two-Part Question

What is the potential argument(s) for strict liability in the case of your autonomous vehicle proposal?

If the legislature decided to apply a strict liability standard, rather than a negligence standard, in what way(s) would that potentially impact the profitability of your autonomous delivery proposal?