Vicarious Liability

Question 1

What is Vicarious Liability (Respondeat Superior)?

Answer 1

Vicarious Liability is liability imposed based solely on the tortious behavior of another person.

Question 2

Does Vicarious Liability have to satisfy the elements of Negligence?

Answer 2

No, Vicarious Liability falls under the purview of Strict Liability.

Question 3

What is the most common kind of Vicarious Liability?

Answer 3

The most common type of Vicarious Liability is when an employer is liable for the torts of an employee committed within the scope of the employee’s employment.

Question 4

What is always required for there to be Vicarious Liability for an employer?

Answer 4

The employee committed a tort.

Question 5

Is the employer still liable under Vicarious Liability if the employer explicitly told the employee not to commit the tortious act they proceeded to commit?

Answer 5

Yes, Vicarious Liability falls under Strict Liability.

Question 6

Can an employer still be vicariously liable even if the employee is no longer liable?

Answer 6

So long as the employee is culpable and the employee has not won on the merits (e.g., receiving a favorable verdict or settling), the employer is still liable under Vicarious Liability.

If the employee is shown not to be culpable or does win on the merits, then the employer is shielded from liability.

Question 7

What is course of employment?

Answer 7

Has the job started and not ended given time, place, and circumstance?

Question 8

What is the Coming and Going Rule?

Answer 8

The employee is not acting within the course of employment when coming or going to work from home.

Question 9

Is the Coming and Going Rule a majority doctrine?

Answer 9

The Coming and Going Rule is a majority doctrine.

Question 10

What are some exceptions to the Coming and Going Rule?

Answer 10

When the employee is traveling to an irregular job site.

When the employee is required to use their own vehicle.

When the employee is carrying out job-related errands during the commute.

Where the commute serves a dual purpose for both the employee and employer.

Question 11

What are detours and frolics?

Answer 11

An example of a detour is an employee delivering packages who goes off course by a block or two to use the restroom.

An example of a frolic is an employee taking an hour away from work to do something completely unrelated to their employment.

Question 12

Are employers liable for the intentional torts of their employees?

Answer 12

Employers can be held liable for the intentional torts of their employees, but we should assume that they will not be held liable.

Question 13

What does it mean for an intentional tort to be incidental to the employee’s duties?

Answer 13

An intentional tort is incidental to the employee’s duties if it was “a generally foreseeable consequence” of the employer’s business.

Question 14

What does foreseeability mean in the context of determining scope of employment?

Answer 14

Foreseeability in the context of determining scope of employment merely means that in the context of the particular enterprise an employee’s conduct is not unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.

Question 15

Is the employee’s motive relevant?

Answer 15

An employee’s motive is relevant and if the motive was trying to benefit the employer in any way, the employer may be liable.

Question 16

What is the Characteristic Risk test?

Answer 16

The Characteristic Risk test imposes vicarious liability when the harm is foreseeable, because the risk is foreseeable.

Question 17

What is the Aided-by-Agency test?

Answer 17

The Aided-by-Agency test imposes liability when the employee is using the authority granted by their employer to commit the tort.

This usually comes up with particularly vulnerable victims who feel they have to acquiesce.

Question 18

Are employers generally vicariously liable for the torts of an independent contractor?

Answer 18

No, employers are generally not vicariously liable for the torts of an independent contractor.

Question 19

What factors are used to evaluate whether an individual is an employee or an independent contractor for purposes of vicarious liability?

Answer 19

Extent of control the master may exercise over details of the work.

Whether one employed is engaged in distinct business or occupation.

Who supplies tools and instrumentalities.

Length of time person is employed.

Method of payment: Time vs. Job.

Whether the work is part of the regular business of the employer.

Parties’ Intent (this is not dispositive).

Question 20

What are exceptions that would lead to an employer being vicariously liable for the torts of an independent contractor?

Answer 20

Where the landowner (or principal) retains control of the manner and means of the doing of the work which is the subject of the contract.

Where he engages an incompetent contractor.

Where the activity contracted for is inherently dangerous.

Question 21

What is the Non-Delegable Duty Doctrine?

Answer 21

An employer may delegate inherently dangerous work, but may not delegate the duty that goes along with that inherently dangerous work.

Question 22

What types of risks and duties are non-delegable?

Answer 22

Peculiar Risk

Statutory Duties

Landowner Duties

Question 23

What is the Both-Ways Rule?

Answer 23

If an employer is vicariously liable for an employee’s negligence to plaintiff, then the employee’s negligence will reduce any recovery in an action by the employer against plaintiff.