Vicarious Liability

Vicarious liability generally

Where the law holds one party responsible for the tortious act of another based on their relationship

Vicarious liability is NOT a defense for the tortfeasor - they are also liable

Respondeat superior

An employer may be liable for the torts of employees acting within the scope of their employment

1. Scope includes acts necessary to comfort, convenience, health of employee while at work

Coming and going rule

Employee engaged in ordinary commute to and from place of work is not within scope of employment 

Exceptions to coming and going rule

1. Employee endangers others with a risk arising from or related to his work 

2. Special mission rule 

   • If doing a special mission for employer on the way to or from work, then employee is within scope for the entire commute  

Slight deviation rule

Whether a deviation is slight or substantial deviation determines whether an employee was still within the scope of employment

Factors

1. Employee’s intent 

2. Nature, time, and place of deviation 

3. Time consumed in deviation 

4. Work for which employee was hired 

5. Incidental acts reasonably expected by employer 

6. Freedom allowed to employee in performing his job 

Independent contractor

General rule: no liability for torts of general contractors

One engaged to perform a certain service for another, free from the control and direction of his employer except as to the result who has the right to control the physical details of the work 

Additional factors 

1. Length of employment relationship 

2. Method of payment 

3. Who provides tools/workplace 

4. Tax/SS withholding (most predictive) 

Exceptions to general contractor rule

1. Nondelegable duties: D may retain negligence liability for certain important duties delegated to an independent contractor

   • Most common: inherently dangerous activities for which defendant owes a special duty of care 

2. Illegal activities: D is liable if hiring a contractor for something illegal 

3. Apparent authority: employer makes contractor appear to be an employee, e.g. makes contractor wear uniform  

Joint enterprise

1. An agreement, express or implied, among members of the group 

2. A common purpose to be carried out by the group 

3. Community of pecuniary interest in that purpose among the members 

4. Equal right to a voice in direction of enterprise, which gives an equal right of control 

Purpose: to impose vicarious liability on one person who is engaged in the same activity with another person committing the tort 

Bailments

General rule: a bailment does not make a bailor vicariously liable for the acts of the bailee in the use of the chattel 

Family car doctrine

Places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for the purposes of the business or pleasure of the owner’s family 

Graves amendment

Car rental companies not vicariously liable