Negligence - Employees and other agents

Learning Outcomes

After reading this article, you will be able to identify when an employer is vicariously liable for the negligent acts of employees and other agents. You will understand the scope of employment, the distinction between employees and independent contractors, and the main exceptions for vicarious liability. You will be able to apply these principles to MBE-style questions.

MBE Syllabus

For the MBE, you are required to understand the rules governing an employer’s liability for the acts of employees and agents. This includes:

  • Recognizing when vicarious liability applies to employers for torts committed by employees.
  • Distinguishing between employees and independent contractors.
  • Defining the scope of employment and identifying when an act falls within it.
  • Knowing the exceptions where employers may be liable for independent contractors.
  • Understanding direct liability versus vicarious liability.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is generally required for an employer to be vicariously liable for an employee's negligence?
    1. The employee acted outside the scope of employment.
    2. The employee was acting within the scope of employment.
    3. The employee was an independent contractor.
    4. The employee committed an intentional tort.
  2. Which of the following is LEAST likely to make an employer vicariously liable for the torts of an independent contractor?
    1. The work involves a nondelegable duty.
    2. The work is inherently dangerous.
    3. The employer exercised no control over the details of the work.
    4. The employer knowingly hired an incompetent contractor.
  3. A delivery driver employed by a bakery negligently injures a pedestrian while making deliveries. The bakery is:
    1. Not liable, because the driver is solely responsible.
    2. Liable only if the driver was acting outside the scope of employment.
    3. Liable, if the driver was acting within the scope of employment.
    4. Liable only if the driver was an independent contractor.

Introduction

Vicarious liability is a key principle in tort law, holding employers responsible for certain acts of their employees and agents. On the MBE, you must know when an employer is liable for negligence committed by those working for them, and when liability does not attach. The main focus is on the relationship between the parties and whether the act was within the scope of employment.

Key Term: Vicarious Liability The legal responsibility imposed on one party for the wrongful acts of another, even though the first party did not commit the act.

Employees vs. Independent Contractors

Employers are generally vicariously liable for torts committed by employees within the scope of employment, but not for acts of independent contractors. The distinction is critical.

Key Term: Employee A person whose work is controlled by the employer as to both what is done and how it is done.

Key Term: Independent Contractor A person hired to accomplish a result but who is not subject to the employer’s control over the details of how the work is performed.

Scope of Employment

Vicarious liability applies only when the employee’s negligent act occurs within the scope of employment.

Key Term: Scope of Employment Acts performed by an employee that are reasonably related to the job and intended, at least in part, to benefit the employer.

Acts Within Scope

  • Performing assigned work.
  • Acts incidental to assigned duties.
  • Minor deviations (“detours”) from work are usually within scope.

Acts Outside Scope

  • Major departures (“frolics”) for personal reasons.
  • Intentional torts, unless foreseeable or part of the job.

Direct vs. Vicarious Liability

Employers may also be directly liable for their own negligence (e.g., negligent hiring, supervision, or retention), separate from vicarious liability for employees’ acts.

Key Term: Direct Liability Liability for one’s own negligent conduct, such as failing to supervise or hire competent employees.

Liability for Independent Contractors

General rule: No vicarious liability for acts of independent contractors. However, exceptions exist:

  • Nondelegable duties (e.g., keeping premises safe for invitees).
  • Inherently dangerous activities.
  • Employer’s own negligence in selecting or supervising the contractor.

Worked Example 1.1

A restaurant hires a waiter as an employee. While serving customers, the waiter negligently spills hot coffee on a patron, causing burns. Is the restaurant liable?

Answer: Yes. The waiter is an employee, and the negligent act occurred within the scope of employment. The restaurant is vicariously liable for the waiter’s negligence.

Worked Example 1.2

A homeowner hires a licensed electrician (an independent contractor) to rewire the house. The electrician negligently causes a fire, damaging the neighbor’s property. Is the homeowner liable?

Answer: Generally, no. The electrician is an independent contractor, and the homeowner is not vicariously liable. However, if the work was inherently dangerous or the homeowner was negligent in hiring, liability may attach.

Worked Example 1.3

A delivery driver employed by a florist detours to run a personal errand and, while doing so, negligently injures a cyclist. Is the florist liable?

Answer: If the detour was minor and the driver was still generally engaged in work duties, the act is within the scope of employment and the florist is vicariously liable. If the driver was on a substantial personal errand (“frolic”), the florist is not liable.

Exam Warning

On the MBE, carefully distinguish between employees and independent contractors. Do not assume that labeling someone an “independent contractor” is conclusive—look for control over the work.

Revision Tip

If you see a question about an employer’s liability for someone’s negligence, first ask: Was the person an employee or independent contractor? Then, was the act within the scope of employment?

Key Point Checklist

This article has covered the following key knowledge points:

  • Employers are vicariously liable for employees’ negligence within the scope of employment.
  • Scope of employment includes acts reasonably related to assigned duties.
  • Employers are not generally liable for independent contractors’ negligence, except for nondelegable duties, inherently dangerous work, or negligent hiring.
  • Direct liability arises from the employer’s own negligence.
  • The distinction between “detour” (within scope) and “frolic” (outside scope) is tested on the MBE.

Key Terms and Concepts

  • Vicarious Liability
  • Employee
  • Independent Contractor
  • Scope of Employment
  • Direct Liability
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal