Negligence - Liability for acts of others

Learning Outcomes

This article examines situations where one party may be held liable for the negligent acts of another. It covers the core principles of vicarious liability, including employer liability under respondeat superior, liability for independent contractors, automobile owner liability, parental liability, and related doctrines. After reviewing this material, you will be able to identify the relationships and circumstances that give rise to imputed negligence and apply the relevant rules to MBE fact patterns involving liability for the acts of others.

MBE Syllabus

For the MBE, you are required to understand the principles governing when a defendant may be held liable for the tortious conduct of another person. This primarily involves vicarious liability but also includes related concepts like negligent entrustment. You should be prepared to:

  • Apply the doctrine of respondeat superior to determine employer liability for employee negligence.
  • Distinguish between employees and independent contractors.
  • Identify exceptions to the general rule of non-liability for acts of independent contractors (e.g., non-delegable duties, apparent authority).
  • Analyze the scope of employment, including detours and frolics.
  • Understand automobile owner liability rules (e.g., family car doctrine, permissive use statutes, negligent entrustment).
  • Evaluate parental liability for the torts of their children.
  • Recognize liability based on joint enterprise or venture.
  • Understand the effect of indemnification between vicariously liable parties.

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. Under the doctrine of respondeat superior, an employer is generally liable for the negligent acts of an employee if the employee was acting:
    1. Solely for the employee's own benefit.
    2. Outside the geographical area of employment.
    3. Within the scope of employment.
    4. In violation of the employer's specific instructions.
  2. Which situation typically creates an exception to the general rule that a principal is NOT liable for the torts of an independent contractor?
    1. The independent contractor uses their own tools.
    2. The principal hires the independent contractor for a highly specialized task.
    3. The independent contractor engages in an inherently dangerous activity.
    4. The principal pays the independent contractor on a per-project basis.
  3. Parental liability for a child's torts generally arises when:
    1. The child commits any tort, regardless of fault.
    2. The parent fails to exercise reasonable care to control the child, whom the parent knows or should know has dangerous propensities.
    3. The child is over the age of 16.
    4. The parent provides the child with necessaries.

Introduction

Generally, a person is liable only for their own tortious conduct. However, under certain circumstances, the law imposes vicarious liability, meaning one person can be held legally responsible for the negligence of another, even if the person being held liable was not personally negligent or at fault. This liability arises from specific relationships between the tortfeasor and the party held liable. The most common form is employer liability for employee torts (respondeat superior), but liability can also arise from relationships involving independent contractors, automobile owners, parents, and joint venturers.

Key Term: Vicarious Liability Liability imposed on one party (e.g., an employer) for the tortious actions of another (e.g., an employee), based solely on the relationship between the two parties, regardless of the first party's own fault.

Employer Liability (Respondeat Superior)

The most frequently tested form of vicarious liability is respondeat superior ("let the superior answer"). An employer will be vicariously liable for the tortious acts committed by its employee provided the tortious acts occur within the scope of the employment relationship.

Key Term: Respondeat Superior A legal doctrine holding an employer vicariously liable for the tortious acts of an employee committed within the scope of employment.

Employee vs. Independent Contractor

This doctrine applies only to the employer-employee relationship. It does not typically apply to acts committed by independent contractors. The determination of whether a person is an employee or an independent contractor hinges on the degree of control the principal exercises over the details of the person's work.

  • Factors indicating an Employee: Employer has the right to control the manner and method in which the job is performed; work is part of the employer's regular business; employer supplies tools/workplace; worker is paid regularly (e.g., salary); worker's job is long-term; skill required is not highly specialized.
  • Factors indicating an Independent Contractor: Worker operates their own business; worker has their own tools; worker is paid by the job; worker has specialized skill; worker controls the hours and methods of work.

Scope of Employment

For an employer to be liable under respondeat superior, the employee's tort must have been committed within the scope of employment.

  • Conduct Authorized: Acts expressly or implicitly authorized by the employer are within the scope.
  • Detour vs. Frolic:
    • A detour is a minor deviation from the employer's business for personal purposes. Acts committed during a detour are typically within the scope of employment.
    • A frolic is a substantial deviation from the employer's business for personal purposes. Acts committed during a frolic are outside the scope of employment.
  • Commuting: Generally, commuting to and from work is outside the scope of employment, unless the employer provides the vehicle or compensates for commuting time.

Key Term: Scope of Employment The range of conduct and activities that an employee is authorized or expected to perform as part of their job duties, relevant for determining employer vicarious liability.

Intentional Torts by Employees

Traditionally, employers were not liable for employees' intentional torts, as these were seen as outside the scope of employment. The modern trend imposes liability if the intentional tort occurred within the scope of employment, which may be the case if:

  1. Force is authorized in the employment (e.g., security guard, bouncer).
  2. Friction is generated by the employment (e.g., bill collector).
  3. The employee is furthering the business of the employer (even if misguidedly, e.g., overzealous salesperson).

Employer's Own Negligence

Note that an employer can also be directly liable for its own negligence in hiring, supervising, or retaining an unfit employee, or in entrusting an employee with dangerous tools. This is distinct from vicarious liability under respondeat superior.

Worked Example 1.1

Delivery Driver, employed by Pizza Co., is making deliveries. His designated route takes him down Main Street. He decides to quickly stop at a store two blocks off Main Street to buy a snack (a minor deviation). While pulling out of the store's parking lot, he negligently hits Pedestrian's car. Pedestrian sues Pizza Co. Is Pizza Co. likely liable?

Answer: Yes, likely. Driver is an employee acting during work hours. The deviation to the store was likely a minor "detour," not a substantial "frolic." Therefore, Driver was likely acting within the scope of employment when the accident occurred, making Pizza Co. vicariously liable under respondeat superior.

Liability for Independent Contractors

The general rule is that a principal is not vicariously liable for the tortious acts of an independent contractor. However, there are important exceptions.

Exceptions to Non-Liability

A principal will be liable for the torts of an independent contractor if:

  1. Inherently Dangerous Activities: The activity undertaken by the independent contractor is inherently dangerous (i.e., involves a high risk of harm that cannot be eliminated by the exercise of reasonable care).
  2. Non-Delegable Duties: The duty owed by the principal is non-delegable due to public policy considerations. Examples include the duty of a business to keep its premises safe for customers, the duty of a property owner to keep land safe after excavation, or the duty of an auto owner to keep brakes in good working order.
  3. Apparent Authority (Estoppel): The principal holds out the independent contractor as their agent/employee, causing a third party to justifiably rely on the care or skill of the independent contractor.

Principal's Own Negligence

Similar to employers, a principal can be directly liable for their own negligence in selecting or supervising an incompetent independent contractor.

Automobile Owner Liability

Generally, an automobile owner is not vicariously liable for the tortious conduct of another person driving their car. Exceptions exist:

  1. Family Car Doctrine: (Minority of states) The owner is liable for the tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.
  2. Permissive Use Statutes: (Some states) The owner is liable for the tortious conduct of anyone driving with the owner's express or implied permission. These statutes often have caps on liability.
  3. Negligent Entrustment: The owner may be directly liable for their own negligence in entrusting the car to a driver whom the owner knows or should know is not competent to drive safely (e.g., due to intoxication, inexperience, prior accidents). This is direct, not vicarious, liability.
  4. Owner Present: Some states impose liability if the owner is present in the car during the accident, often based on a theory that the owner had the ability to control the driver.

Parental Liability

Generally, parents are not vicariously liable for the torts of their minor children. However, liability can arise in specific situations:

  1. Child Acting as Parent's Agent: If the child commits a tort while acting as the parent's agent (e.g., running an errand for the parent), the parent may be liable.
  2. Statutory Liability: Most states have statutes imposing limited liability on parents for willful and intentional torts committed by their minor children (usually up to a certain dollar amount). These statutes typically do not apply to negligent torts.
  3. Parent's Own Negligence: Parents can be directly liable for their own negligence if they fail to exercise reasonable care to control their child when they know or should know of the child's propensity to commit injurious acts, or if they entrust the child with a dangerous instrumentality.

Worked Example 1.2

Father knows his 17-year-old Son has received multiple speeding tickets and drives recklessly. Father nevertheless allows Son to borrow the family car for a party. Son speeds away from the party and negligently causes an accident, injuring Victim. Victim sues Father. Is Father likely liable?

Answer: Yes, likely. While Father is generally not vicariously liable for Son's negligence, Father can be held directly liable for his own negligence in entrusting the car to Son, whom Father knew or should have known was an unsafe driver due to his past recklessness and speeding tickets.

Other Vicarious Liability Situations

  • Joint Enterprise/Venture: Partners or participants in a joint enterprise (an undertaking with a common business purpose and mutual right of control) can be vicariously liable for the torts of other members committed in the course and scope of the enterprise.
  • Bailor-Bailee: Generally, a bailor (owner of property) is not vicariously liable for the torts of the bailee (one in possession). Exceptions exist for negligent entrustment.
  • Tavernkeepers (Dram Shop Acts): Many states have enacted "Dram Shop Acts" that impose liability on vendors of intoxicating beverages (and sometimes social hosts) for injuries caused by intoxicated patrons/guests to whom they unlawfully served alcohol. This liability is often considered direct rather than vicarious.

Indemnification

Where one party is held vicariously liable for the tort of another based solely on their relationship, the vicariously liable party may seek indemnification (full reimbursement) from the party who was primarily at fault (the actual tortfeasor). For example, an employer held liable under respondeat superior may seek indemnification from the negligent employee.

Summary

Vicarious liability holds one party responsible for the torts of another due to their relationship. Respondeat superior makes employers liable for employee torts within the scope of employment (distinguishing detours from frolics). Principals are generally not liable for independent contractors unless exceptions like inherently dangerous activities or non-delegable duties apply. Automobile owners may be liable under family car or permissive use doctrines, or for negligent entrustment. Parents are typically not vicariously liable for children's torts but can be liable for their own negligence in supervision or entrustment. Joint venturers can be liable for each other's torts. Parties held vicariously liable often have a right to indemnification from the actual tortfeasor.

Key Point Checklist

This article has covered the following key knowledge points:

  • Vicarious liability imposes liability based on relationship, not fault.
  • Respondeat superior holds employers liable for employee torts within the scope of employment.
  • Control is key to distinguishing employees from independent contractors.
  • Minor deviations (detours) are within scope; substantial deviations (frolics) are not.
  • Employers can be liable for employee intentional torts if related to employment (force authorized, friction generated, furthering business).
  • Principals are generally not liable for independent contractors, subject to exceptions (inherently dangerous activities, non-delegable duties, apparent authority).
  • Automobile owners may be liable under family car doctrine, permissive use statutes, or for negligent entrustment.
  • Parents are generally not vicariously liable but may be liable for their own negligence or under specific statutes for willful torts.
  • Joint enterprise participants can be vicariously liable for each other.
  • Vicariously liable parties may seek indemnification from the tortfeasor.

Key Terms and Concepts

  • Vicarious Liability
  • Respondeat Superior
  • Scope of Employment
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