Actions of Third Persons 2


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Terms:


Negligent Entrustment:
Where a parent gives a child an object which the child subsequently uses to commit a tortious act.

DRAM Shop Acts:
Statutes which hold a seller of alcoholic beverages liable for the wrongful acts committed by their customers.


The fourth instance in which a defendant can be held liable for the actions of a third person are in partnerships and joint ventures.

Persons who engage in a joint enterprise are vicariously liable for the conduct of the other members within the scope of that enterprise. There are two requirements needed to establish a joint enterprise:

  1. A mutual right to control the operation of the enterprise and,
  2. In some jurisdictions, a common business purpose in which all people involved have a mutual interest.

There is a question as to whether or not there is a joint venture between a car owner and a passenger when they have agreed on a “share the expenses” trip. Some courts will hold this to be a joint enterprise and thus, if there is an accident, the injured plaintiff can sue either the driver or any of the passengers in the car. Other jurisdictions will not find a joint enterprise unless there is a business purpose involved.

The fifth instance in which a defendant will be liable for the actions of a third party involve liability of parents for the torts of a child.

Under the common law rule, parents are not vicariously liable for torts committed by children. However, the common law has been modified by statute in many states so that a parent, or anyone with custody of a child, can be held liable for damages caused by the child if the parent himself was negligent.

There are five possible circumstances for holding parents liable for the acts of their children:

  1. Parents can be held liable for failing to control the acts committed by a child in the parent’s presence.
  2. Parents can be held liable for failing to exercise reasonable care to protect third persons against the child’s known dangerous tendencies. For example, if a child has a habit of biting and the parents know this, the parents will be held liable to anyone the child bites.
  3. Parents can be held liable for failing to warn others with whom the child is likely to come into contact about the child’s known dangerous tendencies. For example, if a child has a habit of biting, the parent has a duty to warn the child’s teachers and parents of the child’s playmates.
  4. Parents can be held liable for failing to prevent a child’s foreseeable use of inherently dangerous instrumentalities. For example, if a parent leaves a loaded gun in an unlocked closet, it is reasonably foreseeable that the child will get his hands on the gun. In such an instance the parent will be held liable for injuries the child causes.
  5. Parents can be held liable for negligent entrustment. Negligent entrustment is negligently leaving a child with an object that the child then uses to commit a tortious or negligent act. An example of this is actually giving a child a loaded gun to play with.

See Richards v. Soucy, 610 A.2d 268 (Me. 1992).

The sixth and final instance in which a defendant can be held liable for the actions of a third party involve liability for tavern keepers and bar owners.

Under the common law, a seller of alcoholic beverages was not liable for injuries resulting from the buyer’s intoxication regardless of whether the injuries were sustained by the buyer or by a third person as a result of the buyer’s conduct. In other words, under the common law, a bar owner was not liable for injuries caused by a drunk customer regardless of whether the injuries were suffered by the drunk customer or by a third person injured by the drunk customer. However, in recent years many states have passed statutes called “DRAM shop acts”.

These statutes create a cause of action against bar owners in favor of third parties injured by drunken customers. See Quinnett v. Newman, 568 A.2d 786 (Conn. 1990). However, some of these statutes allow recovery only if the bar owner had prior notice of a danger in selling to the customer. For example:

Liability might only attach in a situation where the bar owner served, to the point of intoxication, a customer who he knew to be a violent drunk. In a situation where the customer then went out and injured a plaintiff, the plaintiff could sue the bar owner. However, if the bar owner had no idea that there was a danger in selling to the customer, he would not be held liable in the jurisdictions that require prior notice.

Under the DRAM shop acts, recovery is generally limited to injured third parties. Most jurisdictions do not allow the intoxicated person to recover for his own injuries. However, many jurisdictions do allow an intoxicated person's spouse to recover for loss of support resulting from injuries the intoxicated person suffers.

Finally, virtually all jurisdictions have allowed recovery only against commercial sellers of alcohol like bars, liquor stores or restaurants. Thus, there is no liability against a private individual who serves liquor to a guest, even if that guest is visibly intoxicated.

However, several jurisdictions have found liability against social hosts for providing liquor to minors who become intoxicated and later cause injury to a third person.



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