Tort Law: In the following scenario, what framework should I go about using in identifying business/legal issues to identify, explain and provide a solution this: Example:  A delivery driver is completing his daily route and is approaching an intersection which allows him the right of way on a green light.  He must suddenly brake for a pedestrian who walked out in front of his truck and proceeded to walk across the street against a red light.  The delivery truck driver fails to stop in time and hits the pedestrian causing serious personal injuries. 

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The other two answers are comprehensive with regards to the driver and the pedestrian, but I wanted to address the third party involved in a potential legal action: the driver's employer. To determine whether the employer has "vicarious liability" for the actions of the driver, we must answer two questions.

First: is the driver actually an employee for whom the company is responsible, or is he an independent contractor? Three prongs determine this distinction:

  • Behavior: does the employer determine the manner in which work is done, or does the worker?
  • Finance: is the business responsible for maintenance, gas, and other expenses, or is the driver?
  • Relationship: is the work essential to the business over the long term, or is it sporadic?

Second: was the driver acting in his capacity as an employee when the accident occurred?

  • Were the driver's actions consistent with his job description?
  • Was he following workplace guidelines and regulations?
  • If no to either of the above, could the employer have reasonably foreseen the breach of protocol?

In this case, the driver is completing his regular routine doing deliveries, which means he is probably a long-term employee and is probably acting within the scope of his job. If he is determined to be at fault for the accident, his employer will most likely hold vicarious liability.

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Although it is rather simple to realize how the pedestrian was at fault, it is important to also look at the existing conditions on the driver’s side.

It is important to determine whether the driver was vigilant. The driver needs to have been alert and free from distractions. Talking on the phone is considered a distraction while driving and may impact the results of such a case.

It is also important to determine whether the vehicle’s brakes were fully functional at the time of the accident. All vehicles on the road should be maintained in safe working conditions.

Reasonable speeds should be observed by drivers especially when approaching junctions, corners, and other signaled areas of the road. Thus, the driver’s speed at the time of the accident should be established. Reasonable speed also helps in ensuring that the driver has ample time to yield to errant pedestrians (jaywalkers) despite the driver’s right of way.

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The key question in this tort case will be who was at fault in the incident, and therefore who must pay for the damage and injuries caused. This is more important in some states than others; in "no-fault" states such as Michigan, insurance is required to provide certain coverage for everyone regardless of a determination of fault, while in "fault" states such as California each person's liability is strongly dependent upon who is considered at fault.

Key concerns for determining fault include negligence, intent, and strict liability.

Strict liability is the simplest; if you are defined by law or contract to have liability, then you have liability, even if you did everything right. This would likely be the case if the driver was carrying some hazardous substances that are strictly regulated, but it is unlikely otherwise.

Intent means that the harm was caused on purpose, making this a form of assault; that doesn't appear to be the case here.

That leaves only negligence. Was the driver or the pedestrian careless? Was either one violating the law at the time, in such a way that contributed to the injury?

This one could actually be argued both ways. The pedestrian was walking against a red light, suggesting that their negligence might make them at fault. (The saying "pedestrians always have the right of way" is not strictly true.) But if the driver was in any way careless about watching for them and failing to yield, the driver or the company that they were working for could still be held liable. The result of this tort would depend on very precise details of the circumstances. But from what was given, it sounds like it is probably not the driver's fault, and thus neither the driver nor the company they work for would be held liable.

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