Vicarious Liability Flashcards
Vicarious Liability is ___.
Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another.
It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly responsible for the injury.
Vicarious Liability of an Employer
for an Employee’s Torts
Employer’s right of control
As a general rule, the employer is vicariously liable for the employee’s torts if the employer has the right to control the activities of the employee.
Vicarious Liability of an Employer
for an Employee’s Torts
Scope of employment
- An employer is liable for the tortious conduct of an employee that is within the scope of employment.
- Conduct within the scope of employment - acts that the employee is employed to perform or that are intended to profit or benefit the employer.
Note: Careful instructions directed to the employee do not insulate the employer from liability—even when the employee acts counter to the instructions—if the employee is acting within the scope of employment.
Vicarious Liability: Scope of Employment
When force is inherent in the employee’s work (e.g., a bouncer at a bar), the employer ______.
If an employee, acting on a long-standing personal grudge, punches a customer of the employer’s store, the employer _____.
If the employer authorizes the employee to act on his behalf, and the employee’s position provides the opportunity to commit an intentional tort, the employer ______.
An employer may be liable for the intentional tort of an employee.
EX: When force is inherent in the employee’s work (e.g., a bouncer at a bar), the employer may be responsible for injuries the employee inflicts in the course of his work.
EX: If an employee, acting on a long-standing personal grudge, punches a customer of the employer’s store, the employer probably will not be held liable.
If the employer authorizes the employee to act on his behalf, and the employee’s position provides the opportunity to commit an intentional tort, the employer may be liable (e.g., when an employee with the power to sign contracts enters into a fraudulent contract with a third party, the employer may be liable).
As with negligence, the test is whether the employee was acting within the scope of employment. Restatement (Third) of Agency §7.07.
Vicarious Liability: Scope of Employment
Detour & Frolic
Detour and frolic
- An employer may be liable for a tort committed by the employee during an employee’s detour (a minor and permissible deviation from the scope of employment)
- but not for an employee’s frolic (an unauthorized and substantial deviation).
EXAM NOTE: The employer and employee will be ________ liable for torts committed by the employee within the scope of employment.
EXAM NOTE: The employer and employee will be jointly and severally liable (see §IV.J.1. Joint and Several Liability, infra) for torts committed by the employee within the scope of employment.
Vicarious Liability
Scope of Employment
Negligent Hiring
Negligent hiring
An employer may be liable for the negligent hiring, supervision, entrustment, or retention of an employee. This is primary negligence; it is not vicarious liability.
EXAM NOTE: If you conclude that an employer is not liable under a vicarious-liability theory, then be certain to consider whether the employer is liable in her own right for negligence.
Torts Committed By Independent Contractors
Generally no vicarious liability
Those who hire independent contractors are generally not vicariously liable for the torts of the independent contractors.
BUT the party hiring the independent contractor may be liable for his own negligence in selecting the independent contractor.
Torts Committed By Independent Contractors
Distinguished from employee
An independent contractor is one hired to accomplish a task or result but who is not subject to a right of control by the employer.
Independent contractors tend to:
- have specialized skills or knowledge, e.g., physicians and plumbers; and
- work for many employers, while employees more often work for a single employer.
The person who hires an independent contractor remains vicariously liable for certain conduct, including:
i) Inherently dangerous activities;
ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iii) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
iv) In a minority of jurisdictions, the duty to comply with state safety statutes.
Vicarious Liability
Business Partners
Business Partners
Partners in a joint enterprise, when two or more parties have a common purpose and mutual right of control, may be liable for the tortious acts of each other that are committed within the scope of the business’s purposes.
Automobile Owners
Negligent entrustment
The owner of a vehicle (or any other object that carries the potential for harm, such as a gun or lawn mower) may be liable for the negligent acts of a driver or user to whom the car or other property was entrusted if the owner knew or should have known of the user’s negligent propensities.
Automobile Owners
Family-purpose doctrine
Many jurisdictions, through either legislative enactments or judicial decisions, have adopted the family-purpose doctrine, providing that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission.
Automobile Owner liability statutes
Many jurisdictions have enacted statutes that provide that the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission.
Parents and Their Children
No vicarious liability
The general rule is that parents are not vicariously liable for their minor child’s torts. Exceptions:
i) The child commits a tort while acting as the parent’s agent;
ii) State statutes provide for the liability of parents when children commit specified acts such as vandalism or school violence; or
iii) State statutes require that a parent, when he signs for the child’s driver’s license application, assumes liability for any damages caused by negligent acts that the child commits while driving a car.
