Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

Liability that is derivatively imposed

Example: X commits a tort against a 3P. Y is liable to the 3P for X’s tort.

Question 2

In what situations is vicarious liability most often implicated?

Answer 2

• Employer (Passive) / Employee (Active)
• Hirer (Passive) / Independent Contractor (Active)

Question 3

When is an employer vicariously liable for the torts of his employee?

Answer 3

In any situation where the tort occurs within the scope of the employment relationship

Question 4

What is employer-employee vicarious liability called?

Answer 4

Respondeat superior

Question 5

Is an employer liable for a tort committed while the employee took a frolic or detour for his own purposes?

Answer 5

If minor deviation –> yes, still within scope of employment

If substantial time or geographical deviation –> no liability

Question 6

Is an employer liable for an employee’s intentional torts?

Answer 6

No, these are generally outside the scope of employment.

Exceptions
* employee is furthering the business of the employer (e.g., removing rowdy customers from the premises)
* force is authorized as part of the job (e.g., bouncer)

Question 7

Is a hiring party (principal) liable for the torts of his independent contractor (agent)?

Answer 7

Generally no so long as the hiring party does not control the manner and method in which the independent contractor performs the job.

Some public policy exceptions

Question 8

When IS a business owner vicariously liable for the acts of his independent contractor?

Answer 8

1. IC is engaged in inherently dangerous activities (e.g., excavating next to a public sidewalk, blasting)

(ii) The duty is simply nondelegable, (e.g., a business owner’s duty to protect customers from negligence on the property is non-delegable)

• (ii) applies when the owner hires the IC to work on the PREMISES and the IC hurts a CUSTOMER