We're all in this together...or not
05/29/08
One of the more common situations faced in lawsuits with multiple defendants is whether one of the defendants was somehow related, by virtue of employment or other type of relationship, to another defendant. The outcome of that issue can have a major effect on apportionment of damages, and whether one party can be held responsible for the acts of another. The most common theories posited when there are multiple defendants with some link to each other are agency, joint enterprise, and joint venture.
Agency
An agent is one who acts on behalf of another and subject to his or her control. With respect to an employee/employer relationship, an employer is liable for all damages proximately caused by the negligence of his agent employee who is acting within the scope of his employment. An employee is acting within the course of his employment when he is engaged in doing, for his employer, either the act directed by the employer or any act which can fairly and reasonably be deemed to be a natural, direct and logical result of the act directed by the employer. If in doing such an act the employee acts negligently, that is negligence within the course of the employment.
In order to recover against a tortfeasor's employer, the plaintiff has the burden of proving by preponderance of the evidence that the tortfeasor was the employee of the employer, that the employee tortfeasor was negligent while acting within the scope of his employment, and that this negligence proximately caused damage to the plaintiff.
Under West Virginia law, a corporation acts by and through its officers, agent, and employees. If an officer, agent or employee of a defendant corporation is found negligent in the performance of his or her duties, then any such negligence is attributable to the corporation and considered negligence on the part of the corporation, including the failure to comply with applicable automobile and road safety laws.
Independent Contractor Defense
If a tortfeasor was acting as an independent contractor, then an employer has no responsibility for the tortfeasor's acts. Whether or not a tortfeasor is an independent contractor or agent depends on whether the employer controlled, or had the right to control, the work of the tortfeasor. Control in this sense means the right to determine where and in what manner the work would be done. It does not matter that the employer never actually exercised control over the tortfeasor, as long as the employer reserved to itself the right to do so.
Joint Enterprise
When two or more persons undertake an activity involving an automobile for a common purpose, with the common right to control the use of the vehicle, then each is liable for any negligence of the other occupants of the vehicle that is committed during the operation of the motor vehicle. Therefore, the negligence of one of the occupants of the vehicle is imputable to the other occupants of the vehicle if there was a common right to control the vehicle by the other occupants of the vehicle.
However, a passenger in a motor vehicle is not responsible for any negligent acts of the driver of the vehicle by the mere fact the driver and passenger were riding together to the same destination for a common purpose, when the passenger had no voice in directing and controlling the operation of the motor vehicle.
Joint Venture
A "joint venture" is an association of two or more persons to carry out a single business enterprise for profit. To constitute a joint venture, each party must contribute something that promotes the enterprise. This can be property, money, efforts, skill, knowledge or anything else which has value and "promotes" the common undertaking. The contributions of the respective parties need not be equal or of the same character. Where a joint venture exists, each joint venturer is liable for the negligence of his or her co-venturers committed within the scope of the enterprise.
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We're all in this together...or not
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