Vicarious Liability
I) Vicarious Liability – General
A. Makes one liable for another’s wrongful conduct, due to a special relationship that exists between them.
B. Vicarious Liability is an imputed, or secondary form of liability,
C. Vicarious Liability is more closely related to strict liability than negligence or intentional tort liability because the person being held liable has done nothing wrong (not direct liability, which would result from the employer’s lack of care).
II) Vicarious Liability – Policy Reasons
A) Force the enterprise to internalize the losses to others caused by its operations.
B) Provide an incentive to take safety precautions.
C) Risk can be distributed among many insureds paying premiums, and the extra cost of doing business may be reflected in the price of the enterprise’s goods and services.[1]
III)Respondeat Superior – General
A) the desire, to include in the costs of operation, inevitable losses to third persons incident to carrying on an enterprise, so as to distribute the burden (through price increases) among those benefited by the enterprise”.
1) Insurance is readily available for the employer so that the risk may be distributed among many like insureds paying premiums and the extra cost of doing business may be reflected in the price of the product.
B) limited to requiring an enterprise to bear the loss incurred as a result of the employee’s negligence that occurred within the scope of employment.
1) The acts of the employee need be so connected to his employment as to justify requiring that the employer bear that loss.
2) Employees’ acts sufficiently connected with the enterprise are in effect considered as deeds of the enterprise itself.
IV)Respondeat Superior – Rationales
A) Employer’s duty to hire, maintain, a responsible staff of employees, and control the activities of the employees, and thus to insist upon appropriate safety measures.
B) the belief that the employer should pay for the inherent risks which result from hiring others to carry on his business;
C) Deep Pockets (emphasis in class) – Most likely, employer has more money than the employee…the employee could be judgment proof (broke)
D) the observation that the employer most often has easier access to evidence of the facts surrounding the injury;
E) the identification of the employer and employee as a single “persona” jointly liable for the injury which occurred in the context of the business (i.e. where the ee’s acts are sufficiently connected with the enterprise, that are in effect considered acts of the enterprise itself).
V) Respondeat Superior – ROL & Categories
A) ROL: An employer (master) is liable for injuries or damage to the person or property of third persons resulting from the acts of the employee, if the acts of the servant employee are within the scope of the servant’s employment or agency.
B) Generally 3 categories of cases that are associated with vicarious liability under the doctrine of respondeat superior:
1) Negligent Employee:
(a) Where the employee negligently injures a 3rd party under circumstances that are arguably within the scope of employment.
(b) Examples include
(i) accidents while going to and coming from work. “Coming and Going” rule (has exceptions)
(ii) Accidents that occur while the employee is deviating from explicit instructions of the agency. “Detour vs. Frolic of their own” test. (See §§ 228-229 of the Restatement 2d of Agency)
2) Foreseeable use of Force:
(a) Use of force within the scope of employment because their occurrence is “not unexpectable in view of the duties of the servant” (; i.e. “foreseeable use of force” (§245 Restatement (2d) of Agency.
(b) Examples include:
(i) Injuries arising out of job related disputes; bouncers at bars, security guards.
3) Aided by the Agency:
(a) Injuries caused by conduct outside the scope of employment, but where the employee “was aided in accomplishing the tort by the existence of the agency relationship.” (§ 219(2)(d) of the Restatement (2d) of Agency).
(i) 1st should try and determine if the fact pattern associated with these types of cases presents any evidence that would foster a claim for direct liability against the employer.
(ii) Examples of these types of cases include:
· Rapes of patrons by hotel managers
· Sexual misconduct/sexual assault of clients by psychologists, masseuse, attorney, etc.
VI)Respondeat Superior – Checklist/Pattern of Analysis
1) Was the tortuous act of the employee the cause of P’s injury; can there be direct liability?
2) Definition, Background and Purpose:
(a) Vicarious Liability: The doctrine of vicarious liability makes a faultless party liable for the tortious acts of another due to a special relationship between them.
(b) Background
3) Respondeat Superior
(a) Rule of Law:
(i) An employer (master) is liable for injuries or damage to the person or property of third persons resulting from the acts of the employee, if the acts of the servant employee are within the scope of the servant’s employment or agency.
(b) Was the person who caused the injury properly classified as an employee, or independent contractor?
(i) Ten Factors (RED’S SLIM PP)
(c) If not an employee/employer relationship, is he an independent contractor, subject to the exclusions to the general rule,
(i) Five Exceptions (P is in)
(d) If not an employee, nor an independent contractor subject to exceptions to general rule, does the relationship create a :
(i) Partnership
(ii) Joint Venture
(iii) Joint Enterprise
(iv) Concerted Effort (Not Vicarious Liability, Joint and several)
(e) Was he in the course and scope of employment?
(f) Punitive Damages?
1. Resp. Sup. – Analysis
to the direction and control of the other with respect to a particular transaction or piece of work .
· However, such a relation between the borrower and the servant is not established Unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master, AND
· unless the lender surrenders and the borrower assumes the power of supervision and control.”
(m) Includes furtherance of enterprise by:
(i) Employee
(ii) Independent Contractors if exceptions to general rule are present.
(iii) Presidents/CEOs
(iv) Partners
(v) Joint Ventures (business enterprise for-profit, duty to members due to the business relationship, and duty to 3rd parties).
(vi) Joint Enterprise (no duty to members, but to 3rd parties)
(n) Respondeat Superior does not apply for:
(i) Generally excludes independent contractors unless exceptions for non-delegable duties exist.
(ii) Intervening superseding act by other tortfeasor.
(iii) Joint enterprises when injury is to member of the joint enterprise.
(iv) Car owners (except in states with “family car”/”permissive use” doctrine)
(v) Parent’s for their children’s torts (although can be directly liable if child lacks maturity and judgment to control).
(o) Don’t make assumptions about the persons status, must analyze!!
F. If no employee/employer relationship exists, is the person an independent contractor (with circumstances that fit exceptions) , or does a partnership, joint venture, or joint enterprise exist?
(p) Partnership, Joint Venture, Joint Enterprise, and Concerted Efforts.
(i) Direct Liability:
a) The tortfeasor as an individual.
b) Employers can be held directly liable for negligent selection, instruction, or supervision of an independent contractor.
c) Persons in a “concerted effort” for tortious conduct of another.
(ii) Vicarious Liability
a. Employers can be held vicariously liable if an exception to the general rule concerning indep. contractors exists.
b. Partners in a partnership can be held vicariously liable to each other, and to 3rd parties.
c. Members of a Joint Venture to 3rd parties, and to its members.
d. Members of a joint enterprise for injury to 3rd parties, but NOT its
[1] See Fruit v. Schreiner in re vicarious liability.
