Torts - Vicarious Liability

Vicarious Liability

One person is held liable for tortious conduct of another, even though that person committed no personal wrongdoing

• applies when one has the right, ability, or duty to control activities of the tortfeasor (employer→employee)

Liability flows through the relationship, not through personal fault

Employer’s Right of Control

A person is an employer if they have the right to control the means and methods of how work is performed

A worker subject to this control=employee

• If employer lacks this right of control, the worker is likely an independent contractor, and vicarious liability generally does not apply

Scope of Employment

Employer is vicariously liable for torts an employee commits within the scope of employment

Scope includes acts the employee is:

• employed to perform

• Intended to benefit or profit the employer

Even if employee disobeys instructions, the employer may still be liable if the employee was acting within the scope

Intentional Torts (When Employers Are Liable)

Employers can be liable for employee’s intentional torts when:

• use of force is inherent in job (e.g., bouncer)

• employee’s position creates the opportunity for the tort (e.g., employee signs fraudulent contracts)

Test= was the employee acting within the scope of employment?

Detour v Frolic

Detour=minor, forseeable deviation from work→employer liable

Frolic=major, unauhorized personal deviation→ employer NOT liable

Joint & Several Liability

When an employee commits a tort within the scope of employment, both the employer and employee are jointly and severally liable for P’s damages

Employer’s Direct Liability

Employers may also be directly liable for their OWN negligence in:

• hiring

• training

• supervising, or

• entrusting work or equipment to an employee

Applies only to harms caused by employee within the scope of employment

Independent Contractor - General Rule

A person who hires an independent contractor is generally not vicariously liable for contractor’s torts

Employee vs Independent Contractor

Independent contractor = hired to achieve a result, but free to choose method and means 

Employee = subject to employer’s control→triggers respondeat superior

Exception - Non-Delegable Duties

A hirer is vicariously lliable for independent contractor torts if the duty is non-delegable, including:

1. inherently dangerous activities

2. Duties owed to the public/specific Ps

3. Duty of business owners to keep premises safe for customers

4. (Minority): duties arising from state safety statutes

Apparent Agency

hirer is vicariously liable for an independent contractor when:

• P reasonably believes the contractor is an employee of the hirer (based on the hirer’s manifestations), and

• the contractor’s negligence causes harm within the scope of the services

(EX: Taxi painted with company branding → passengers reasonably believe driver works for company → company liable for driver’s negligence_

Direct Liability- Negligent Selection/Supervision

Hirer is directly liable for their own negligence in hiring, supervising, or retaining an independent contractor

• NOT vicarious liability, hirer’s OWN negligence

Partnership Liability

Partners in a partnership are jointly and severally liable for torts committed by any partner within the scope of the partnership business

• Each partner is treated like an agent of the partnership for tort purposes

Joint Enterprise Liability

Members of a joint enterprise are vicariously liable for each other’s torts when:

• they share a common purpose, AND

• they have a mutual right of control over the enterprise

Liability attaches only when the tort is committed within the scope of the joint purpose

(but in an LLC, members are not generally liable for torts committed by other LLC members)

Automobile Owners - Negligent Entrustment

a vehicle owner is directly liable for negligent entrustment when:

• owner knew/should have known that the driver had negligent/dangerous propensities, AND

• the entrusted person causes harm

Automobile Owners - Family Car Doctrine

in many jurisdictions, owner of a family vehicle is vicariously liable for torts committed by a family member who drives the car with the owner’s permission

• liability applies even if the family member was using the car for personal convenience

Automobile Owners - Owner-Liability Statutes

Many jurisdictions have statutes making the vehicle owner vicariously liable for the torts of anyone driving the car with permission, not just family

Broader than family car doctrine → liability extends to friends, borrowers, employees, etc.

Parents and Children - General Rule for VL

Parents are not vicariously liable for minor children’s torts.

Exceptions:

• child act’s as parent’s agent

• State statutes impose liability for specific acts (vandalism, school violence)

• State statutes impose liability when a parent signs a minor’s driver’s license, making parent liable for child’s negligent driving

Parental Negligence

Parents can be directly liable for their own negligence in failing to control/supervise their child

A parent must use reasonable care to prevent a minor from harming others when the parent

• has the ability to control the child, AND

• knows/should know of the need and opportunity to exercise that control.

This applies even if the child is too young to be held personally liable

(EX: A father gives a gun to his six-year-old child and allows unsupervised use.

• Child accidentally shoots a neighbor.

• Child not liable (too young),

• Father liable for negligent supervision—he failed to control a foreseeable, preventable risk.)

Dram Shop Liability

Many states allow a cause of action against sellers of alcohol when a third party is injured because buyer became intoxicated

Most states impose liability only when:

• Buyer was a minor

• Buyer was already intoxicated when alcohol was sold

Some states allow liability against a social host who serves alcohol to minor

States are split on negligence vs strict liability based on statutory violations