Vicarious liability

Question 1

Intentional torts

Answer 1

An employer can be liable for the intentional torts of an employee when force is inherent in the employee’s work and the tort was within the scope of his employment.

Question 2

Scope of employment

Answer 2

A tort is within the scope of employment even if it is counter to the employer’s instructions if the employment contract authorizes tortious action that would otherwise be counter to the employer’s instructions.

Question 3

Indemnification

Answer 3

Indemnification generally applies when one person is vicariously liable for the other’s wrongdoing.

No indemnification agreement is required to allow indemnification when a party has been held vicariously liable for the negligence of another.

Question 4

Independent contractors

Answer 4

Employers are not liable for the torts of true independent contractors, except where:

(1) an employer is negligent in selecting an independent contractor;
(2) the function is inherently dangerous;
(3) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition; or
(4) the function is non-delegable.

Question 5

Parents

Answer 5

The general rule is that parents are not vicariously liable for their minor child’s torts.

Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided:

• The parent has the ability to control the child, and;
• Knows or should know of the necessity and opportunity for exercising such control.