Employer Liability

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Read the fact pattern below

  • Prepare a memorandum of no less than three, but no more than five, pages that:
    • Summarizes the relevant facts
    • Determines whether an agency relationship exists and the nature of the agency and agent’s authority if the relationship does exist
    • Analysis of whether the employer is vicariously liable for each tortious act identified including the basis for such vicarious liability

fact pattern

Adventures in Pizza Delivery

You work at a general practice law
firm. About three years ago, the firm helped Luigi form a limited liability
company for his pizza parlor. Luigi has now come to the office seeing
representation as his company has been sued in tort twice in one week. Your
supervising attorney asks you to do the initial intake and prepare a memo
regarding Luigi’s exposure and any defenses he might have against the suit.

Luigi’s Pizza Parlor offers home
delivery. In fact, if your pie isn’t delivered within 60 minutes of your order,
it’s free. One of Luigi’s drivers is Carmen. Carmen is paid by the hour and
receives tips. Luigi creates her schedule. Carmen does use her own car for
deliveries but is reimbursed for mileage by Luigi. She delivers only to the
addresses Luigi gives her but picks her own route to get to the location.Carmen’s the best driver Luigi has because
she’s always on time and Luigi never has to forfeit the price of a pie she
delivers.Well, she was the best…

Two weeks ago, Luigi took an order
for a birthday party – three cheese and two pepperoni pizzas – and gives the
delivery job to Carmen.

Knowing that her bank account will
be overdrawn if she doesn’t deposit the paycheck she just received, she decides
to pick a route to the house that has her bank on the way. It’s not the
quickest route, but she figures she will have plenty of time to deposit the
check and still make the delivery within the deadline.

Carmen runs through the bank’s
drive thru and deposits the paycheck. However, she misjudges the speed of the
traffic coming down the street as she pulls into the traffic and gets hit by a
car. The driver takes her insurance card and notes the Luigi’s Pizza Parlor
sign on the roof of her car. The police arrive and ticket her for failing to
yield.

Carmen is now late and is ticked.
Her perfect delivery record is ruined. She pulls into the driveway to deliver
the pizzas. Company policy is not to pull into a customer’s driveway but rather
park on the side of the street, but Carmen is pressed for time and ignores the
rule. After delivering the pizza, she jumps in her car to return to the parlor
for the next delivery run. She fails to check her rear view mirror and
accidently bumps into a child riding a bicycle that was on the street in front
of the driveway. Carmen is both afraid and mad at herself because she knows if
she would have either checked the mirror or followed the “no driveway rule,”
she wouldn’t have hit the kid.

Carmen jumps out the car and saw a
young boy on the ground. Timmy, who is six, was out of control screaming and
crying. The child’s mother, Tina, who witnessed the entire accident from her
yard across the street, ran over, screaming and crying as well. Tina examined
the child and found several scrapes and abrasions but nothing else. The bike,
however, was damaged. Its frame and front wheel bent under the force of the car
pinning it down.

After suffering through Tina’s
screaming and threats, Carmen waited once again for the police to arrive on the
scene. She was ticketed for failing to yield to a pedestrian and for reckless
driving.

Timmy was taken to the ER.The ER confirmed that Timmy’s injuries were
confined to the scrapes and abrasions on his knees and elbows. His bike helmet
spared him from any head trauma.

Luigi and Carmen have been sued by
the driver involved in the traffic accident by the bank and sued in a separate
suit by Timmy’s parents.Both complaints
allege negligence on behalf of Carmen and that Luigi’s Pizza Parlor is
vicariously liable. Tina, Timmy’s mother, has also sued for negligent
infliction of emotional distress.

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