Clem on Torts: Chapter 5: Vicarious Liability

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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Up to this point, we’ve spoken in terms of the defendant doing something wrong (an intentional tort or negligence) and being liable to the person harmed. There are some cases where one person is liable for the negligence of another person, and we call this vicarious liability. The defendant (often the person with the “deep pockets”) is vicariously liable for the tort committed by the other person, who is often a co-defendant.

Respondeat superior

Under the doctrine of respondeat superior, an employer is vicariously liable for the torts committed by employees during the course of employment.

The first requirement for this doctrine to be applied is that there is an employer-employee relationship. Essentially, the employer (the person we want to be vicariously liable) must be in a position to direct the conduct of the employee. The fact that the employer issues a W-2 form is probably relevant, but it’s not dispositive. The key issue is whether the employer is able to exercise control.

Second, the tort must be within the scope of employment. The key question to ask here is whether the employee was acting for the employer’s benefit at the time of the tort. Also, we need to ask whether the employee was subject to the employer’s control.

It should be noted that the employee is probably still liable for the tort as well. This fact is often ignored, since the employee is often not worth suing. But it’s important to note that the doctrine of respondeat superior does not release the employee from liability. It merely gives the plaintiff an additional defendant to sue.

Joint enterprise liability

A joint enterprise is defined as an undertaking by two or more persons to carry out a limited number of undertakings for profit. The undertaking must be “for profit”. In other words, it must be some sort of business venture. Whether or not an undertaking is done “for profit” is typically the most vexing issue. Accordingly, that’s the issue that’s most likely to be on your final exam. The issue of joint enterprise liability is most likely to come up in the context of a products liability case, but it could arise in any case involving any kind of joint business venture.

Statutory vicarious liability

In addition to these common-law types of vicarious liability, other types of vicarious liability might arise due to a statute. The most commonly discussed of these is the “family purpose doctrine”. But keep in mind that this type of liability is created by the legislature. So in general, if this issue arises on your final exam, there should be some reference to the state statute. If the statute is not discussed, but the facts seem to support one of these statutory liabilities, it’s best to cover your bases on the exam, but also point out that this vicarious liability would apply only if the state in question had adopted it.

Clem on Torts is also available at Amazon as a Kindle book.

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