Reference no: EM133449532

Directions: Make a legal memo to the senior attorney of your firm analyzing whether Mr. Mordino's employer, the Hotel, is vicariously liable for his conduct if, in fact, it was tortious.  

Assume you have received the following e-mail from your supervising attorney:

E-MAIL To:        Junior Associate From:   Lillian Hale, Senior Attorney Date:    October 4, 2022 Subject: Client Joseph Mordino Yesterday, I had an initial consultation with Mr. Joseph Mordino. He has been sued, along with his employer, the Grand Wallea Hotel (whom we do not represent) in connection with an incident at the Hotel this past August. He was served on July 12.  Recently, his previous attorney slipped in the shower and died of head injuries, so he just now retained our firm to represent him. I interviewed Mr. Mordino about the facts alleged in the Complaint. Here's what he told me: On June 22, 2019, in Houston, Texas, Mr. Mordino  was working at the pool known as the "Family Pool" until his shift ended at 8:00 pm. At the time, he changed out his lifeguard uniform and chose to move over to the "Adult Pool" on Hotel's property to visit with his girlfriend. The plaintiff, Samuel Zelman, did not "strike up a conversation" with several women at the pool, but instead was loudly yelling lewd and disrespectful remarks at women, including, Mr. Mordino's girlfriend. Mr. Mordino states that when he went over to speak with Mr. Zelman, he noticed four empty beer bottles on the side of the table next to Mr. Zelman, in addition to the one he was actively drinking.  Mr. Mordino claims that he didn't "loom over" Mr. Zelman but did stand next to the lounge chair in which Mr. Zelman was lying and politely asked him to stop yelling at women. He states that he said something, like "I think you might have had a little too much to drink, so why don't you go up to your room and sleep it off?"  Mr. Mordino claims that Mr. Zelman declined to leave or stop yelling and told him to "f*** off," asking him "What are you going to do to stop me?"  At that point, he placed his hand on Mr. Zelman's shoulder and told him, "I will make you leave if you won't go on your own."  Mr. Zelman was clearly intoxicated and could barely stand. He took a swing at Mr. Mordino, tripped over a lounge chair and fell. Mr. Zelman was treated by the hotel medical staff for a dislocated shoulder and a cut to his forehead.

Rules:

Vicarious Liability

Vicarious Liability is liability that a supervisory party such as employer, bears for actionable conduct of a subordinate or associate, such as, an employee, based on the relationship between the two parties.

Vicarious liability, also known by the Latin term "respondent superior," is the holding of a person or entity responsible for damages or harm caused by someone else.

Most commonly thought of in employee-employer relationships, it applies in other situations in which a person or entity holds a superior position to an agent. For instance, a hospital is responsible for its doctors' actions

Vicarious Liability in Employment

Employers (Principals) can be held liable for the actions or omissions during the commission of the employee's (agents) job. In order for the act to be considered "in the course of employment," the employer must have authorized or directed the act, or be otherwise connected with the act. An employer is not, however, responsible for actions taken by his employee which are not within the scope of his employment

In short, the legal doctrine holds one person liable for the tortious acts of another.

Most often a victim is required to prove that the elements of vicarious liability exist. If he fails to do so, the court may find that the employer us not liable for the damages. The primary elements of vicarious liability that must be proven are:

• The agreement the employee entered into as a condition of employment required the employee to work under the authority of the employer.
• Additional elements of vicarious liability require the employer to have control over the employee, and the actions of the employee to have fallen within the scope of his employment at the time of the incident.

Independent contractors-individuals performing work for someone else, though not considered legal employees but independent contractors are not working within the scope of employment for sake of vicarious liability.