Public policy dictates in certain situations that one person or entity should be liable for the acts or omissions of another person or entity. Vicarious liability is a form of secondary or indirect liability that is imposed when parties have a particular relationship, usually an agency relationship. When it is applicable to a particular situation, a principal is required to answer for an agent’s negligent or otherwise wrongful actions.
Vicarious liability is often applicable to employer-employee relationships, but it is also applicable to other situations where a superior is held responsible for the acts of a subordinate. It can apply whenever a third party has the right and duty to control the activities of the negligent person.
Vicarious liability may allow a plaintiff to reach other recovery sources, such as an employer’s insurance policy.
For example, in many jurisdictions, a car owner can be held vicariously liable for a negligent driver who was running an errand or otherwise doing work for the owner of the car and got into a car accident. In general, car rental companies cannot be held responsible for the negligence of drivers who rent their cars. On the other hand, in some jurisdictions, parents can be held vicariously liable for their children’s torts.
What distinguishes vicarious liability from other theories of liability is that it can be imposed irrespective of participation in the wrongful act. The principal whose liability is based on an agent’s liability is not considered a joint tortfeasor with the agent and is not independently liable.
The Doctrine of Respondeat Superior
One type of vicarious liability is respondeat superior, which means “let the master answer.” When respondeat superior applies, an employer will be liable for an employee’s negligent actions or omissions that occur during the course and scope of the employee’s employment. This means that the employee must be performing duties for the employer at the time of the negligence for the employer to be held liable under respondeat superior.
For example, when a truck driver’s negligence results in a truck accident, a person injured in the accident may be able to bring the truck driver’s employer, usually a trucking company, into the lawsuit. This can make a big difference as to whether the victim of the accident actually recovers all of his or her damages after obtaining a judgment. A plaintiff need not show that the employer was independently negligent but must prove there was an employment relationship.
In some cases, trucking companies designate their truck drivers as independent contractors, hoping to avoid liability. Respondeat superior only applies to employment relationships, not the relationship between a company and an independent contractor. However, most courts consider multiple factors when determining whether an employment relationship exists for purposes of applying vicarious liability.
An employer is usually not liable for an employee’s intentionally wrongful or criminal acts.
In most jurisdictions, an employer can be vicariously liable for an employee’s negligence but will not be liable for intentionally wrongful or criminal acts, such as assault, unless the employee’s intentionally wrongful acts were either required by the employment or foreseeable. In general, even if an employee does act outside the scope of employment, an employer can be held liable in some jurisdictions if it subsequently ratifies the wrongful actions. The question that must be answered in respondeat superior cases is whether the employee’s acts were in furtherance of the employer’s interests.
For example, in some jurisdictions, when a clergyman sexually molests a child while ostensibly attempting to counsel him or her during overnight church activities, the religious institution has been held vicariously liable. In other jurisdictions, the religious institution will only held liable if it knew or should have known of the molestation and failed to take precautions to prevent it.