Vicarious liability

Introduction
Intentional Torts
Privileges
Policy issues
Negligence
Damages
Vicarious liability
Strict liability
Products liability
Index of tort cases
Tort cases

VICARIOUS LIABILITY

Definition

Liability without fault

In some situations the tortious act of one person may be imputed to another because of a special relationship

Respondeat Superior Doctrine

If an Employee commits a tort during the "Scope of his Employment" his Employer will be liable.

Issues

Was the wrongdoer an Employee or an Independent Contractor?

If the actor was an Employee, was it in the scope of employment?

If the actor was an Independent Contractor, does the action fall within an exception (to the general rule of no liability for independent contractor) that causes Vicarious Liability.

Exceptions

An Employer who hires an Independent contractor is NOT generally liable for the torts of that person

Exceptions to the rule where an Employer will be held liable:

	Was the employer Negligent in the hiring, training, etc. (This is really not Vicarious Liability, but Negligence.)
	Inherently Dangerous Work: This rule applies even if every possible precaution was taken. RS §416 work which create risk physical harm to others.
	Non-Delegable Duty: This is where there are some duties of care that are deemed so important that the person owing them will Not Be Allowed to Delegate them to anyone. Look for something that involves a federal or state statute or regulation that impose responsibility on an owner for the condition of the car that the person can't escape.

Employee or independent contractor

Liability (149)

	An Employer is NOT liable for the actions of an Independent Contractor.
	An Employer IS liable for the actions of an Employee.

How to decide

	Look at the control: The control required to make a person an Employee rather than a Independent Contractor is usually held to be control over the Physical Details of the work. (control over employee's work vs. details of work; courts look at this most)
	Method of Payment: If the person is paid by the job rather than by the hour, you are probably an Independent Contractor.
	Distinct Occupation: Chimney Sweep, Lawyers, Landscapers are usually Independent Contractors.
	Instrument under Wrongdoer's control or ownership: (court not look at this too much)

Scope of employment

Acting within the scope of employment if he was acting with an Intent to further his employer's business purpose, even if the means he chose were indirect, unwise, & perhaps even forbidden.

RS §229 - what kind of conduct is within the scope of employment?

	Enterprise test: was the employee working towards the furtherance for the benefit of the employer? How is what she did connected to the employment?
	Control test: (151-152) Does D have control of activity of the employee, or the opportunity to control?
	Characteristic test: Ira Bushy 350 supp. employee's action characteristic of the type of action from Ds' employees.

Tests

Commuting

Commuting from home to work, the employee is not acting within the scope based on the theory that the employer has no "Control" over the employee at that time.

Frolic & detour

	Traditional View: While an employee is on the first leg of a Frolic & Detour she is not within the scope (a defense by employer), but as soon as she begins to return toward the path of her original business trip, she is once again within the Scope of Employment.
	Modern View: The employee is within the scope of business if the deviation is "Reasonably Foreseeable" (distance).

Acts prohibited by employer

Employer liability will exist even if the acts done were expressly forbidden by the employer, if they are done in furtherance of the employment.

RATIONALE

People seek to recover under Vicarious Liability because Employers usually have deeper pockets.

It makes Employers more careful about who they hire.

The Employer is in a better position to obtain insurance.

The liability incurred from injuries should be considered a cost of doing business.

Why have vicarious liability at all?

Fairness concerns

	Fair to make employers bear the costs that generally go along with doing this type of business.
	Just as they benefit from their employees, the employers should also be expected to bear the costs if harm occurs while the employee is acting in furtherance of employer's interest.

Deterrence

	Encourage safety by being more selective in hiring employees
	It costs a lot to take precautions in hiring the "right" employees, supervision, and training, to the degree that is "just right."
	Safety idea is a false one: employers can be held liable for their own negligence in hiring, supervision, and/or training.

Compensation/Loss spreading:

Deep pocket of employers

Cases

JOHN R. V. OAKLAND UNIFIED SCHOOL DISTRICT (Student sexually assaulted at home of math teacher in official program)

The School was not held vicariously liable because of policy reasons.

	Insurance would be more costly
	Funds would be diverted from educational purposes
	Similar programs that are beneficial would be stopped

© 2000 Pedro J. Rodríguez Esquerdo
These materials are intended solely as a study aid. The author is not responsible for any omission or error. You are welcome to use , print, modify and distribute without financial profit these materials to suit your personal educational needs.

VICARIOUS LIABILITY

Definition

Liability without fault

In some situations the tortious act of one person may be imputed to another because of a special relationship

Respondeat Superior Doctrine

If an Employee commits a tort during the "Scope of his Employment" his Employer will be liable.

Issues

Was the wrongdoer an Employee or an Independent Contractor?

If the actor was an Employee, was it in the scope of employment?

If the actor was an Independent Contractor, does the action fall within an exception (to the general rule of no liability for independent contractor) that causes Vicarious Liability.

Exceptions

An Employer who hires an Independent contractor is NOT generally liable for the torts of that person

Exceptions to the rule where an Employer will be held liable:

Was the employer Negligent in the hiring, training, etc. (This is really not Vicarious Liability, but Negligence.)

Inherently Dangerous Work: This rule applies even if every possible precaution was taken. RS §416 work which create risk physical harm to others.

Employee or independent contractor

Liability (149)

An Employer is NOT liable for the actions of an Independent Contractor.

An Employer IS liable for the actions of an Employee.

How to decide

Look at the control: The control required to make a person an Employee rather than a Independent Contractor is usually held to be control over the Physical Details of the work. (control over employee's work vs. details of work; courts look at this most)

Method of Payment: If the person is paid by the job rather than by the hour, you are probably an Independent Contractor.

Distinct Occupation: Chimney Sweep, Lawyers, Landscapers are usually Independent Contractors.

Instrument under Wrongdoer's control or ownership: (court not look at this too much)

Scope of employment

Acting within the scope of employment if he was acting with an Intent to further his employer's business purpose, even if the means he chose were indirect, unwise, & perhaps even forbidden.

RS §229 - what kind of conduct is within the scope of employment?

Enterprise test: was the employee working towards the furtherance for the benefit of the employer? How is what she did connected to the employment?

Control test: (151-152) Does D have control of activity of the employee, or the opportunity to control?

Characteristic test: Ira Bushy 350 supp. employee's action characteristic of the type of action from Ds' employees.

Tests

Commuting

Commuting from home to work, the employee is not acting within the scope based on the theory that the employer has no "Control" over the employee at that time.

Frolic & detour

Traditional View: While an employee is on the first leg of a Frolic & Detour she is not within the scope (a defense by employer), but as soon as she begins to return toward the path of her original business trip, she is once again within the Scope of Employment.

Modern View: The employee is within the scope of business if the deviation is "Reasonably Foreseeable" (distance).

Acts prohibited by employer

Employer liability will exist even if the acts done were expressly forbidden by the employer, if they are done in furtherance of the employment.

RATIONALE

People seek to recover under Vicarious Liability because Employers usually have deeper pockets.

It makes Employers more careful about who they hire.

The Employer is in a better position to obtain insurance.

The liability incurred from injuries should be considered a cost of doing business.

Why have vicarious liability at all?

Fairness concerns

Fair to make employers bear the costs that generally go along with doing this type of business.

Just as they benefit from their employees, the employers should also be expected to bear the costs if harm occurs while the employee is acting in furtherance of employer's interest.

Deterrence

Encourage safety by being more selective in hiring employees

It costs a lot to take precautions in hiring the "right" employees, supervision, and training, to the degree that is "just right."

Safety idea is a false one: employers can be held liable for their own negligence in hiring, supervision, and/or training.

Compensation/Loss spreading:

Deep pocket of employers

Cases

JOHN R. V. OAKLAND UNIFIED SCHOOL DISTRICT (Student sexually assaulted at home of math teacher in official program)

The School was not held vicariously liable because of policy reasons.

Insurance would be more costly

Funds would be diverted from educational purposes

Similar programs that are beneficial would be stopped