Torts: Vicarious Liability

Vicarious Liability

  • one person will go out in the world and commit a tort. In addition to suing that person, the victim will sue another person. V will sue active tortfeasor and a purely passive party.
    • Flows from relationship between active tortfeasor and passive party: (4 relationships)
  • Employer-employee relationship – employer is vicariously liable for the active torts of employees committed in the scope of employment.
    • Scope of employment issues:
      • Departures from the work (frolic v. detour) – a minior departure from the work does not take employee outside the scope of employment. Boss still vicariously liable. A major departure destroys vicarious liability.
      • Intentional torts: generally, they’re outside the scope of employment. But exceptions..
        • If boss authorized employee to use force (bouncer), if employee uses too much force, boss is vicariously liable.
        • If job generates friction/tension.
        • Anytime the employee is acting to serve the employer’s purposes in a misguided and over-zealous way, that will generate vicarious liability.
  • Automobile owner-automobile driver –
    • MBE: owners not liable for the torts of drivers. 1 exception:
    • If driver is doing an errand for the owner, it comes out the other way, and owner is liable.
    • Fed statute: a car renter is never vicariously liable for someone who is driving the rental car.
  • Independent contractor and a hiring party
    • Hiring party not vicariously liable for the torts of an IC.
      • Exception: If a land possessor hires an IC to work on the premises, and if IC hurts an invitee, there is vicarious liability. (plants in mall).
  • Parents and children
    • Parents, who are purely passive parties, are not vicariously liable for the torts of their kids.
      • This is a BIG BAR EXAM TRAP. DON’T FALL FOR IT. Vicarious liability is always your last possible theory. Ask can I hold Δ liable for his own negligent conduct first.