Negligence - Liability for acts of others

Learning Outcomes

This article explains negligence liability for acts of others in an MBE context, including:

• How and when negligence is imputed from a primary tortfeasor to another person or entity based on relationships such as employer–employee, principal–agent, vehicle owner–driver, parent–child, partners, and joint enterprise participants.
• How to classify a relationship as employment, independent contractor, joint enterprise, agency, or mere permission, and how that classification affects vicarious liability, direct liability, and imputed contributory negligence.
• How vicarious liability doctrines interact with direct negligence theories (negligent hiring, negligent supervision, negligent entrustment, negligent selection of independent contractors) and with contribution and indemnification among multiple defendants.
• How statutory schemes—such as family car doctrines, permissive use statutes, dram shop acts, and parental responsibility statutes—modify common-law rules about liability for the acts of others and create additional exam traps.
• How to read and diagram MBE fact patterns to separate: (a) who was negligent; (b) who may be vicariously liable; and (c) which parties can assert or face defenses based on imputed negligence and comparative fault.

MBE Syllabus

For the MBE, you are required to understand when liability for negligence may be imposed on someone other than the primary tortfeasor, with a focus on the following syllabus points:

• Respondeat superior and employer liability for employees.
• Distinguishing between employees and independent contractors.
• Exceptions to the no-liability rule for independent contractors (for example, non-delegable duties, abnormally dangerous activities, apparent agency).
• Determining the scope of employment, including detours, frolics, coming-and-going, and special errands.
• Automobile owner liability theories (family car doctrine, permissive use statutes, negligent entrustment).
• Parental liability for children’s torts and parental direct negligence.
• Vicarious liability in joint enterprises, partnerships, and similar relationships.
• The operation of imputed contributory negligence and its modern limitations.
• Indemnification and contribution among parties where vicarious liability has been imposed.
• How statutory schemes (for example, dram shop acts, owner-liability statutes) alter common-law rules about liability for acts of others.

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 abnormally 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, in a number of recurring relationships the law imposes vicarious liability, under which one party is held liable for the tortious acts of another even though the first party did not personally act negligently.

Key Term: Vicarious Liability
Liability imposed on one party (for example, an employer, principal, or vehicle owner) for the tortious actions of another (for example, an employee, agent, or driver), based solely on the relationship between them, not the first party’s own negligence.

The policy behind vicarious liability is primarily risk allocation and accident prevention. Certain actors (for example employers, businesses, and vehicle owners):

• Are in a better position to select and supervise those who create risk on their behalf.
• Can spread losses through insurance and pricing.
• Can internalize the costs of risky activities, so that the enterprise bears accident costs rather than random victims.

On an MBE negligence question, once you have identified someone who was negligent, you should immediately ask a second question: “Is there any person or entity that might be vicariously liable for that negligence?” Most of the time, that second question focuses on whether a legally significant relationship exists between the negligent actor and another party.

The most important doctrine is respondeat superior, under which employers are liable for torts committed by employees within the scope of employment. Other common areas include liability for independent contractors in limited circumstances, automobile owner liability, parental liability, joint enterprises, and dram shop statutes.

Key Term: Respondeat Superior
A doctrine making an employer vicariously liable for an employee’s torts committed within the scope of employment, even if the employer was free from personal fault.

Key Term: Scope of Employment
The range of activities reasonably related to the employee’s job duties, time, place, and purpose of employment, used to decide whether respondeat superior applies.

Two further ideas are essential:

• Vicarious liability is derivative: if the employee (or other primary tortfeasor) is not negligent, there is nothing to impute and the employer (or other secondary party) is not vicariously liable.
• Vicarious liability is additional, not substitutive: the employee remains liable; the employer is added as another defendant. They are typically jointly and severally liable for the plaintiff’s full damages.

Vicarious liability typically co-exists with direct negligence claims. In many questions, you will be asked to spot both:

• Vicarious liability (for example, employer liable because the employee was negligent while on duty).
• Direct negligence (for example, employer independently liable for negligent hiring or negligent entrustment).

A common MBE pattern is:

• Step 1: Identify the negligent person (for example, a delivery driver, physician, bartender, or child).
• Step 2: Ask whether that person was acting for (or held out as acting for) another (for example, an employer, hospital, bar, parent, or business associate).
• Step 3: Apply the relationship-specific rules to decide whether the other actor is also liable.

The rest of this article develops each relationship in turn and shows how to apply these rules on MBE-style questions.

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.

Important consequences:

• The employee remains personally liable; vicarious liability is in addition to, not instead of, the employee’s liability.
• Employer and employee are usually jointly and severally liable to the plaintiff.
• The employer may later seek indemnification from the employee (discussed below).

Employee vs. Independent Contractor

This doctrine applies only to the employer–employee relationship. It does not typically apply to acts committed by independent contractors (ICs). The central question is the degree of control the employer (or principal) has over the worker.

Key Term: Employee
A worker whose manner and means of performing work are subject to the employer’s right of control, so that respondeat superior applies to torts within the scope of employment.

Key Term: Independent Contractor
A worker who undertakes to perform a job but retains control over the manner and method of work, generally making the principal not vicariously liable for the worker’s torts.

Indicators of an employee relationship (no single factor is determinative):

• Employer has the right to control the manner and method of performance, not just the result.
• Work is part of the employer's regular business (for example, a driver for a delivery company, a staff nurse in a hospital).
• Employer supplies tools, equipment, uniforms, and workplace.
• Worker is paid by time (salary or hourly) rather than by the job.
• Work is ongoing, indefinite, or long-term.
• Skill required is ordinary or not highly specialized.
• Worker is integrated into the employer’s organization (appears on staff lists, company email, scheduling software).
• Employer can fire the worker at will, rather than only for breach of contract.

Indicators of an independent contractor:

• Worker operates an independent business and offers services to multiple clients.
• Worker supplies their own tools, vehicles, and workspace.
• Paid per project or per task (lump sum, per job, contingency fee).
• Work requires specialized skills or professional judgment (for example, architect, outside lawyer).
• Worker controls hours, sequence, and methods of work.
• Relationship is project-specific or short-term.
• Parties describe the worker as an “independent contractor” and issue Form 1099 (label is relevant but not controlling).

On the MBE, if the facts emphasize detailed control by the business over how, when, and where the person works, treat the person as an employee even if the contract labels them an “independent contractor.” The exam often tests that labels do not override the economic reality of the relationship.

A recurring exam trap is where a hospital, ride-share company, or franchise claims that the tortfeasor was an independent contractor. If the principal controls when the person works, what jobs they take, and how services are delivered, you should lean toward “employee,” even if the entity calls them a contractor for tax purposes.

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. Courts look at three main dimensions:

• Type of conduct:
  Was the employee doing the kind of work they were employed to perform, or at least an act closely related to authorized duties?

• Time and place:
  Did the conduct occur substantially within work hours and at an authorized location, or during an authorized trip?

• Purpose (motivation):
  Was the employee, at least in part, serving the employer’s business or advancing the employer’s interests, even if also pursuing personal motives?

If all three point toward the employer’s business, the act is usually within scope even if the employee was negligent, careless, or violated specific rules.

Key nuances:

• Acts forbidden by the employer can still be within the scope if they are of the kind the employee was hired to perform. A delivery driver who speeds or texts while driving in violation of company rules is still driving for the employer’s business.
• A substantial purely personal motive (for example, settling a personal grudge) may take the act outside the scope, especially for intentional torts.

In close cases, the exam facts will usually push you one way: repeated emphasis on a “purely personal mission” points toward no vicarious liability; repeated emphasis on a business purpose, employer-provided equipment, or being “on call” points toward liability.

Detour vs. Frolic

A critical MBE distinction concerns minor versus major deviations from the employer’s business.

Key Term: Detour
A slight deviation from the employer’s business for personal reasons, but sufficiently related to work that the employee is still considered within the scope of employment.

Key Term: Frolic
A substantial deviation from the employer’s business for purely personal reasons; the employee is outside the scope of employment during the frolic.

• Detour (employer liable):

  • Brief stop for coffee or a snack on a delivery route.
  • Driving a slightly different route to avoid traffic or construction.
  • Dropping off personal mail or picking up personal dry cleaning if it adds minimal time and does not substantially alter the route.

• Frolic (employer not liable):

  • Leaving deliveries for several hours to visit friends, go home, or go sightseeing.
  • Driving far out of town during work hours for a purely personal errand unrelated to any business purpose.

If an employee returns from a frolic and re-enters the sphere of employment, respondeat superior resumes once the employee is again substantially engaged in the employer’s business. The exam sometimes tests the exact moment of “re-entry” into the scope of employment—often when the employee has completed the personal mission and is driving back to the assigned route or office.

When facts look mixed, ask: At the time of the accident, was the personal errand still ongoing, or had the employee substantially resumed the employer’s business?

Coming-and-Going Rule and Special Errands

Key Term: Coming-and-Going Rule
As a general rule, commuting to and from work is outside the scope of employment, so employers are not vicariously liable for commuting accidents.

Under the coming-and-going rule:

• Employer is not liable for accidents occurring during the employee’s regular commute.
• This remains true even if the employer pays a mileage allowance or the employee is using their own vehicle.

However, several important exceptions (often tested) can bring travel within the scope:

• Special errands:
  If the employer specifically asks the employee to run a particular errand (for example, drop off a package at the post office, pick up supplies) on the way to or from work, that trip (or the errand portion) can be within the scope of employment.

• Business trips and traveling employees:
  Employees whose work requires travel (for example, sales representatives, traveling nurses, field service technicians) are usually considered within scope for most of their travel-related activities, including hotel stays and meals, as long as they are not on a substantial frolic. A car accident while driving from a hotel to a client meeting is typically within scope.

• Employer-provided vehicle or paid travel time:
  If the employer provides the vehicle, closely controls travel, or pays for travel time, courts are more likely to treat travel as within scope, especially if the trip combines commuting with business purposes (dual-purpose trips).

MBE patterns often involve “dual-purpose” travel—where the trip serves both personal and business objectives. If the business purpose is substantial and the tort is closely connected to that purpose, treat it as within scope.

Borrowed Servant (Loaned Employee)

Key Term: Borrowed Servant
An employee temporarily lent by one employer to another; liability depends on which employer had the right to control the details of the employee’s work at the time of the tort.

The general test: Who had the right to control the employee’s work in the particular task that led to the injury?

• If the borrowing entity directs the employee’s day-to-day work on that task, it is usually the liable “employer” for respondeat superior purposes.
• The original employer may remain liable if it retains significant control over how the work is done or if the borrowing arrangement is limited and the original employer controls key aspects (for example, maintenance and operation of specialized equipment).

On the MBE, you may see:

• A hospital “loaning” a nurse to a private clinic for a day.
• A trucking company sending a driver to work for another carrier.
• A construction company renting a crane and operator to another contractor.

Ask:

• Who directed what was to be done and how?
• Who could fire or replace the worker for that task?

Contract language assigning responsibility is relevant but not controlling. The practical allocation of control is key.

Intentional Torts by Employees

Traditionally, employers were not liable for employees’ intentional torts because such acts were often motivated by personal anger or malice and viewed as outside the scope of employment. Modern law recognizes several situations where intentional torts are sufficiently connected to employment that vicarious liability is appropriate.

Employers may be liable for an employee’s intentional tort when:

• Use of force is authorized or typical in the job:

  Jobs where the use or threat of force is a foreseeable part of the work:

  • Security guards or bouncers at bars or clubs.
  • Store detectives detaining suspected shoplifters.
  • Debt collectors or repossession agents.

  If such an employee uses excessive force in performing their duties, the employer is often vicariously liable because the risk of such misconduct is a foreseeable aspect of the enterprise.

• The job naturally generates friction with third parties:

  Work that predictably leads to confrontations can make intentional torts reasonably foreseeable:

  • Bill collectors dealing with delinquent debtors.
  • Ticket takers or ushers at crowded events.
  • Parking enforcement officers.

  If the tort arises out of that friction (for example, assault during a heated dispute over payment), it may be within scope.

• The employee is furthering the employer’s business, even if misguidedly:

  • A manager forcibly ejects a customer and commits battery.
  • An overzealous salesperson detains a customer on suspicion of theft and commits false imprisonment.

By contrast, employers are generally not liable for purely personal intentional torts, such as:

• An assault between co-workers over off-duty personal matters.
• A fight arising out of an old personal grudge unrelated to work.
• Sexual assaults that are purely personal and not closely tied to the job’s functions.

On exams, focus on whether the intentional tort was motivated, at least in part, by a purpose to serve the employer, and whether it was closely connected to the job duties.

Employer’s Own Negligence

Even when respondeat superior does not apply, an employer can be directly liable for its own negligence. Common theories:

• Negligent hiring:
  Failing to use reasonable care in hiring (for example, employing a driver with known multiple DUIs for a driving job).

• Negligent supervision:
  Failing to monitor or control an employee whose dangerous tendencies are known or should be known (for example, ignoring repeated complaints that an employee drives recklessly or harasses customers).

• Negligent retention:
  Keeping an employee after learning of dangerous propensities (for example, retaining a delivery driver after repeated at-fault accidents).

• Negligent entrustment:
  Entrusting a dangerous instrumentality (for example, vehicle, firearm, heavy machinery) to an employee who is incompetent or unfit.

Key Term: Negligent Entrustment
Direct-liability doctrine where a person (often an employer or vehicle owner) negligently gives another a dangerous instrumentality when they know or should know the recipient is likely to use it in a way that creates unreasonable risk of harm.

These theories require proof of the employer’s own lack of reasonable care, not just the employee’s tort.

MBE questions often allow recovery against both:

• The employer, vicariously (for the employee’s negligence); and
• The employer, directly (for negligent hiring, supervision, or entrustment).

You should be able to identify both possibilities. Where punitive damages are in play, an employer’s own negligent hiring or ratification can be particularly important, because some jurisdictions limit punitive damages based solely on vicarious liability.

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. Driver is an employee acting during work hours. The snack stop is a minor detour, not a substantial frolic. The tort occurred while Driver was still engaged in Pizza Co.’s business, so he was within the scope of employment, and Pizza Co. is vicariously liable under respondeat superior. The fact that the stop slightly changed the route does not break the causal link between the delivery job and the accident.

Worked Example 1.2

Accountant works 9–5 as an employee of Firm. After work, she drives 30 miles to visit a friend for purely personal reasons. On the way, she negligently causes a crash. The injured driver sues Firm, arguing that Accountant was returning from a client dinner. Evidence shows the trip was entirely personal. Is Firm vicariously liable?

Answer:
No. Accountant was off duty and traveling for purely personal purposes. Her trip falls under the coming-and-going rule and is not a detour furthering Firm’s business. She was on a frolic, so Firm is not liable under respondeat superior. Even if Firm pays her a salary and reimburses some mileage, that does not convert a clearly personal trip into a business trip.

Worked Example 1.3

Bouncer is employed by Club to maintain order and remove unruly patrons. While escorting Patron out after a heated argument about a spilled drink, Bouncer punches Patron, breaking Patron’s jaw. Patron sues Club. Is Club vicariously liable?

Answer:
Likely yes. Use of some force is a normal part of Bouncer’s job, and the punch occurred while performing assigned duties (removing a customer) in an interaction generated by the business. Even though the punch exceeded what was reasonable, the intentional tort is closely connected to Bouncer’s employment, and Club can be liable under respondeat superior. A jury could reasonably find that Bouncer was still acting, however aggressively, in furtherance of Club’s interests in maintaining order.

Liability for Independent Contractors

The general rule is that a principal is not vicariously liable for the tortious acts of an independent contractor. This reflects the lack of control over the manner and means of performance: the IC, not the principal, decides how the work is carried out.

The first step is always to ask: Is this worker really an IC, or is it actually an employee mislabelled as a contractor? If the principal controls day-to-day details of how the work is done, treat the worker as an employee and apply respondeat superior.

If the worker is a true independent contractor, the general rule of no vicarious liability applies, subject to several important exceptions.

Exceptions to Non-Liability

A principal will be liable for the torts of an independent contractor if one of the following applies.

1. Abnormally Dangerous Activities

Key Term: Abnormally Dangerous Activity
An activity that, even with reasonable care, involves a peculiar or high risk of serious harm to others (for example, blasting, large-scale demolition).

If a principal hires an independent contractor to carry out an abnormally dangerous activity, many courts treat the principal’s duty of care as non-delegable. The principal remains liable for negligence in performing that activity, and in many jurisdictions may be strictly liable for harm characteristic of that activity.

Examples:

• Blasting with explosives in a populated area.
• Large-scale fumigation with toxic chemicals.
• Pile driving that creates substantial vibration.
• Transporting highly toxic or explosive materials through a city.

The rationale is that some activities are so risky that the person benefitting from the activity cannot avoid liability simply by hiring someone else. For MBE purposes, if the facts scream “blasting,” “explosives,” or similarly extraordinary danger, expect the hiring party to be liable even though a contractor did the work.

2. Non-Delegable Duties

Key Term: Non-Delegable Duty
A duty that, for reasons of public policy, cannot be avoided by hiring an independent contractor; the principal remains liable if the duty is breached.

Common non-delegable duties on the MBE:

• Duty of a business to keep its premises reasonably safe for invitees (including escalators, elevators, and other common areas).
• Duty of a landowner to take reasonable precautions during excavations or construction near public sidewalks and streets.
• Statutory or common-law duties imposed on certain actors (for example, duty to maintain brakes in good working order, duty of municipalities to keep streets and sidewalks reasonably safe).

If a store hires an independent contractor to maintain its escalators and the escalator malfunctions, injuring a shopper, the store can still be liable because its duty to maintain safe conditions for invitees is non-delegable.

The same analysis applies to:

• Hospitals hiring independent contractors to maintain equipment or provide basic services.
• Landowners hiring independent contractors to perform work that creates foreseeable danger to people using public ways.
• Property owners who hire contractors to remove ice and snow from sidewalks in jurisdictions where codes impose that duty.

The independent contractor’s negligence is still the immediate cause, but the landowner or business cannot shift the duty away.

3. Apparent Agency (Ostensible Agency)

Key Term: Apparent Authority / Apparent Agency
A situation where a principal holds another out as its agent or employee, causing a third party to reasonably believe the relationship exists and to rely on that representation.

Even if a worker is technically an independent contractor, a principal may be vicariously liable if:

• The principal represents (by words, conduct, or circumstances) that the worker is its agent or employee.
• The third party reasonably relies on that representation.
• The third party suffers harm because of that reliance.

Common MBE scenario:

• A hospital contracts with physicians as independent contractors but represents them as “staff doctors” through signage, name badges, advertising, or consent forms. A patient, relying on those representations, seeks treatment at the hospital and is injured by the physician’s negligence.

If the patient reasonably believed the doctor was a hospital employee and relied on that belief, the hospital can be held vicariously liable under apparent agency, despite the independent contractor contract.

Courts focus on:

• The principal’s manifestations (not the contractor’s self-description).
• The reasonableness of the plaintiff’s belief.
• The plaintiff’s reliance on that belief in seeking services.

On the MBE, pay attention to facts about logos, uniforms, how the person was described to the plaintiff, and whether the plaintiff chose the individual provider or simply went to the institution.

Principal’s Own Negligence

Even without vicarious liability, a principal can be directly liable for:

• Negligent selection:
  Hiring an incompetent or unfit independent contractor (for example, an unlicensed demolition contractor in a dense urban area).

• Negligent instruction or supervision:
  Giving unsafe instructions, failing to coordinate contractors, or failing to monitor work when the principal retains control over some aspects of the work.

This direct negligence is analyzed under ordinary negligence principles and does not depend on any special vicarious liability rule.

Worked Example 1.4

Department Store hires LiftCo, an independent contractor, to maintain its escalators. Despite regular servicing, an escalator stops abruptly and injures Shopper. Shopper sues Store only. Evidence shows the malfunction resulted from LiftCo’s negligent maintenance. Store argues that LiftCo is an independent contractor. Result?

Answer:
Store is likely liable. A store’s duty to maintain reasonably safe premises for customers is typically treated as a non-delegable duty. Even though LiftCo is an independent contractor, Store remains liable to invitees for negligence in performing that duty. Store may then seek indemnification from LiftCo. The fact that Store used an outside company may be relevant to an indemnity claim between Store and LiftCo, but it does not defeat Shopper’s claim against Store.

Automobile Owner Liability

At common law, an automobile owner is not vicariously liable for the tortious conduct of another person driving the owner’s car, absent an agency or employment relationship. Mere ownership and permission to use the vehicle are not enough.

Many states, however, have adopted doctrines or statutes that expand owner liability. The MBE will always tell you if such a statute or doctrine applies. If nothing is said, assume the common-law rule: no vicarious liability merely from ownership.

1. Family Car Doctrine

Key Term: Family Car Doctrine
A minority rule under which the owner of a car used as a family vehicle is vicariously liable for the negligent driving of a family member or household member using the car with the owner’s permission.

Key points:

• Typically applies to spouses, children, and other household members.
• Requires express or implied permission to use the car.
• Treats the family member as the owner’s agent for purposes of household or family use.

In such a jurisdiction, an owner whose teenager negligently injures someone while using the “family car” for family or personal purposes may be vicariously liable, even though the teenager is not an employee.

2. Permissive Use Statutes

Some states have statutes imposing liability on an owner for the negligence of anyone driving with the owner’s permission.

Features:

• Apply regardless of family relationship.
• Often cap the owner’s liability at a statutory amount.
• Sometimes described as “omnibus” clauses in auto insurance policies.

On the exam, you will usually be told: “By statute, an owner is liable for the negligence of any permissive driver.” Apply the statute as written, including any limits.

3. Negligent Entrustment by Owners

As discussed above, an owner can be directly liable for negligently entrusting a vehicle to an incompetent or unfit driver (for example, intoxicated, unlicensed, habitually reckless).

This is not vicarious liability; it is based on the owner’s own negligence in giving the keys to someone they knew or should have known posed an unreasonable risk.

Repeated patterns:

• Lending a car to a driver known to drive drunk or without a license.
• Allowing a visibly intoxicated friend to drive home.
• Allowing a minor child with a history of reckless driving to take the car unsupervised.

Even in states without a family car doctrine or permissive use statute, negligent entrustment can make the owner liable.

4. Owner Present in the Car

Some jurisdictions impose owner liability where the owner is physically present as a passenger and has a right and ability to control the driver.

Theories include:

• Agency: the driver is acting under the owner’s direction and control.
• Joint enterprise: owner and driver share purpose and control.

On the MBE, look for facts emphasizing that the owner:

• Directed the route or purpose of the trip.
• Had authority to stop the driver from negligent conduct but failed to do so.
• Retained keys or otherwise manifested control.

If the owner is merely a passive passenger without realistic control (for example, an elderly passenger riding with an adult child), many courts will not impose vicarious liability absent a specific statute.

Worked Example 1.5

Owner lends her car to her 19‑year‑old brother, who has a history of reckless driving and a recent DUI that Owner knows about. Brother drives sober but negligently blows a stop sign and injures Pedestrian. The jurisdiction has no family car doctrine or permissive use statute. Pedestrian sues Owner. Is Owner liable?

Answer:
Yes, under negligent entrustment. Even though there is no vicarious liability based on family status or permissive use, Owner knew of Brother’s dangerous driving history and nevertheless entrusted him with a vehicle, creating an unreasonable risk. Owner’s liability is based on her own negligence, not on imputed fault from Brother.

Parental Liability

Generally, parents are not vicariously liable for the torts of their minor children simply because of the parent–child relationship. The MBE expects you to distinguish between:

• No automatic vicarious liability, and
• Parental direct negligence or limited statutory liability.

1. Child Acting as Parent’s Agent

If a child commits a tort while acting as the parent’s agent or employee (for example, driving to pick up supplies for the parent’s business), normal agency rules apply and the parent may be vicariously liable.

Examples:

• Teenager delivering pizzas for a family-owned restaurant.
• Child running errands for the parent’s business in the family car.
• Minor operating machinery in a family farm operation.

In such cases, analyze the agency relationship just as you would for any employee: Is the child doing the parent’s business and under the parent’s control?

2. Statutory Liability for Willful Torts

Most states impose limited parental liability by statute for willful and intentional torts by minor children (for example, vandalism, malicious mischief).

Typical features:

• Liability is usually capped at a modest amount (for example, a few thousand dollars).
• Statutes are designed to compensate victims of deliberate property damage.
• These statutes usually do not cover negligence.

On the MBE, apply any statutory caps or limitations stated in the problem and be careful to distinguish between intentional and negligent acts when interpreting the statute.

3. Parent’s Own Negligence

Parents can be directly liable for their own negligence in:

• Failing to exercise reasonable care to supervise or control a child when the parent knows or should know the child has dangerous tendencies (for example, history of violence, arson, cruelty to animals).
• Negligently entrusting a dangerous instrumentality to a child (for example, firearm, fireworks, powerful tools, or vehicle) given the child’s age and tendencies.

This is simply ordinary negligence: Did the parent act as a reasonably prudent parent in light of what they knew or should have known?

Examples:

• Parent knows Child is prone to starting fires but leaves matches and gasoline in an accessible shed.
• Parent knows Child has previously assaulted classmates but leaves Child unsupervised with younger children.

If those circumstances lead to harm to a third party, the parent’s negligence can be the basis of liability, even though there is no automatic vicarious liability for all of Child’s torts.

Worked Example 1.6

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. While Father is generally not vicariously liable for Son's negligence, Father can be held directly liable under negligent entrustment. He knew or should have known of Son’s dangerous driving and nonetheless entrusted him with the car, creating an unreasonable risk of harm. Son’s negligence and Father’s entrustment are both proximate causes of Victim’s injury.

Other Vicarious Liability Situations

A number of additional relationships can result in one person being liable for another’s negligent act. These are less frequently tested than respondeat superior, but they appear regularly enough that you must recognize them quickly.

Joint Enterprise / Joint Venture

Key Term: Joint Enterprise
A relationship in which two or more persons undertake a specific enterprise with a common purpose, a community of financial interest, and an equal right of control over the venture.

Participants in a joint enterprise can be vicariously liable for torts committed by other members in the course of the enterprise if:

• There is an express or implied agreement.
• The parties share a common business or pecuniary purpose (not merely social).
• They have a community of financial interest in that purpose.
• Each has an equal right to control the enterprise’s activities.

On the MBE:

• Two friends on a purely social trip (for example, joyriding, driving to the beach) generally do not form a joint enterprise.
• Business partners delivering goods for their partnership, or co-owners using a vehicle for a joint business purpose, may.

If a joint enterprise exists, the negligence of the driver can be imputed to the other participants for purposes of both liability and some defenses (see imputed contributory negligence below).

Partners and Business Associations

In general partnerships and similar business entities:

• Each partner is an agent of the partnership for business purposes.
• The partnership (and often each partner) is vicariously liable for torts committed by any partner in the ordinary course of partnership business.

This extends to some business associations where statutes impose vicarious liability for acts of agents within their authority (for example, partners in a law firm, members of a joint venture). On the MBE, if you see “a general partnership,” assume each partner can create vicarious liability for the firm (and for the other partners) when acting within the ordinary course of business.

Limited liability entities (LLPs, LLCs, corporations) often protect individual owners from personal liability for other owners’ torts, but the entity itself is usually vicariously liable for employees’ and agents’ torts committed within the scope of their roles.

Bailor–Bailee

Key Term: Bailor
Owner of personal property who temporarily transfers possession to another (the bailee) for a limited purpose (for example, valet parking, dry cleaning).

Key Term: Bailee
Person in lawful possession of another’s property with a duty to exercise reasonable care, such as a repair shop or coat check.

The general rule:

• A bailor is not vicariously liable for the bailee’s torts.
• A bailee is not vicariously liable for the bailor’s torts.

However:

• A bailor can be directly liable for negligent entrustment if they entrust a dangerous chattel (for example, car, gun) to a careless or unfit bailee.
• A bailee can be directly liable for negligence in caring for the bailed property or for torts committed in the course of using the property.

There is no automatic imputation of negligence between bailor and bailee based solely on the bailment relationship.

Tavernkeepers (Dram Shop Acts) and Social Hosts

Key Term: Dram Shop Act
A statute imposing liability on commercial suppliers of alcohol (and sometimes social hosts) for injuries caused by intoxicated persons when alcohol is served in specified prohibited circumstances.

Many states have enacted Dram Shop Acts that impose liability on commercial vendors of alcohol (and sometimes social hosts) for injuries caused by intoxicated patrons or guests when:

• Alcohol is served to visibly intoxicated persons; or
• Alcohol is served to minors.

Key points:

• Liability is typically direct, not vicarious. The seller is liable for its own negligent service of alcohol.
• Dram shop liability is statutory; always apply the specific statute described in the question.
• Social host liability is more limited and varies widely; many states do not impose liability on social hosts for serving alcohol to adults, but some do for serving minors.

The MBE may present a statutory scheme and ask you to determine whether the statute creates liability for the bar, restaurant, or host when a drunk driver injures a third party.

Imputed Contributory Negligence

Key Term: Imputed Negligence
Treating one person’s negligence as attributable to another, typically because of a vicarious liability relationship, for purposes of defenses like contributory negligence.

Historically, some jurisdictions imputed a driver’s contributory negligence to a passenger (for example, spouse, child) and barred the passenger’s claim against a third party. Modern law disfavors broad imputation of contributory negligence.

Current approach:

• Imputed contributory (or comparative) negligence is usually limited to relationships where vicarious liability also exists, such as:
  • Employer–employee (for example, employer suing a third party for damage to its property caused in an accident involving its own negligent driver).
  • Business partners engaged in partnership business.
  • Participants in a joint enterprise.

Imputed contributory negligence does not typically apply to:

• A child plaintiff based solely on a parent’s negligent supervision.
• A married plaintiff based solely on the spouse’s negligence.
• A passenger plaintiff based solely on the driver’s negligence, in the absence of a joint enterprise, agency, or other special relationship.

On the MBE, if a child is injured as a passenger while the parent drives negligently, the child’s recovery against a third-party tortfeasor is not reduced or barred by the parent’s negligence, unless the jurisdiction specifically adopts a contrary rule or the relationship fits one of the narrow recognized categories.

Worked Example 1.7

Owner and Friend agree to drive Owner’s car to a nearby city to buy inventory for Owner’s shop. Owner and Friend share fuel costs, and both have an equal say over route and stops. Friend drives, negligently causing a collision that injures Third Party. Third Party sues Owner only. Can Third Party recover from Owner?

Answer:
Likely yes. Owner and Friend are engaged in a joint enterprise with a common business purpose (obtaining inventory) and an equal right of control, and Friend is driving in furtherance of that enterprise. Friend’s negligence can be imputed to Owner, making Owner vicariously liable to Third Party. Owner may later seek contribution from Friend, but that does not affect Third Party’s ability to recover from Owner.

Indemnification

Key Term: Indemnification
A right of one party, who has paid a plaintiff, to full reimbursement from another party who was primarily responsible for the harm.

Where one party is held vicariously liable for another’s tort, the vicariously liable party can usually seek indemnification from the primary wrongdoer.

Examples:

• An employer held liable under respondeat superior seeks indemnification from the negligent employee.
• A store held liable under a non-delegable duty theory seeks indemnification from a negligent independent contractor.
• A car owner found liable under a family car doctrine statute seeks reimbursement from the negligent family-member driver.

Indemnification is distinct from contribution:

• Contribution: Sharing loss among multiple tortfeasors according to their relative fault.
• Indemnification: Shifting the entire loss from one party to another (from the party with derivative liability to the party with primary liability).

On the MBE, indemnification often appears in questions asking which party ultimately bears the loss after a successful plaintiff’s judgment, or in questions about third-party practice where a defendant impleads another party.

Worked Example 1.8

Truck Driver negligently injures Pedestrian while delivering goods for Employer within the scope of his employment. Pedestrian sues Employer only and recovers $200,000. Employer then sues Driver for indemnification. Can Employer recover?

Answer:
Yes. Employer was vicariously liable under respondeat superior, but Driver was the primary tortfeasor. Employer is entitled to indemnification from Driver for the full amount paid to Pedestrian, subject to any contractual or statutory limitations. Driver’s personal assets and any liability insurance he carries may be used to satisfy the indemnity claim.

Worked Example 1.9

Surgeon has hospital privileges at City Hospital but is designated by contract as an independent contractor. Hospital advertises, “Our experienced team of hospital-employed surgeons provides top-quality care.” Patient goes to Hospital’s emergency room, reasonably believing she will be treated by hospital employees, and is injured by Surgeon’s negligence. Patient sues Hospital, which asserts that Surgeon is an independent contractor. Is Hospital likely liable?

Answer:
Likely yes. Even though Surgeon is technically an independent contractor, Hospital held Surgeon out as part of its own staff, creating apparent agency. Patient reasonably relied on Hospital’s representations in seeking care. Hospital can be held vicariously liable for Surgeon’s negligence under apparent agency. Hospital may then pursue Surgeon for indemnification or contribution, but that does not defeat Patient’s claim against Hospital.

Worked Example 1.10

Employer’s delivery truck is struck by Third Party’s car. Driver, an employee, was negligently exceeding the speed limit while making a delivery. Employer sues Third Party for damage to the truck. Third Party asserts Driver’s contributory negligence as a defense, arguing that Driver’s negligence should be imputed to Employer. Is Third Party’s defense valid?

Answer:
Yes. Employer is vicariously liable for Driver’s negligence in the accident, and in Employer’s claim against Third Party for property damage, Driver’s negligence may be imputed to Employer. Employer’s recovery may be reduced or barred under contributory or comparative negligence principles, depending on the jurisdiction. This is an application of imputed contributory negligence in the employer–employee context.

Key Point Checklist

This article has covered the following key knowledge points:

• Vicarious liability imposes liability based on certain relationships rather than the defendant’s own fault.
• Respondeat superior holds employers liable for employee torts committed within the scope of employment, focusing on type of conduct, time and place, and purpose.
• The distinction between employees and independent contractors turns mainly on the degree of control over the manner and means of work, not just contractual labels.
• Minor deviations (detours) are within scope; substantial deviations (frolics) are not. Commuting is usually outside scope, subject to special-errand, dual-purpose, employer-provided vehicle, and traveling-employee exceptions.
• Borrowed servant situations are resolved by asking which entity had the right to control the details of the work at the time of the tort.
• Employers may be vicariously liable for certain intentional torts of employees when force is a regular part of the job, friction is generated by the employment, or the employee is furthering the employer’s business.
• Employers, principals, and owners may be directly liable for their own negligence (for example, negligent hiring, supervision, retention, or entrustment) even when vicarious liability does not apply.
• Principals are generally not liable for independent contractors’ torts, subject to key exceptions: abnormally dangerous activities, non-delegable duties, and apparent agency.
• Automobile owners may face liability under the family car doctrine, permissive use statutes, or for negligent entrustment; at common law, mere ownership alone is not enough.
• Parents are generally not vicariously liable for children’s torts, but may be directly liable for negligent supervision or entrustment, or statutorily liable in limited amounts for intentional torts.
• Joint enterprises and partnerships can create vicarious liability among participants for torts committed in the course of the enterprise; each partner may bind the firm for acts within the ordinary course of business.
• Dram shop statutes can impose liability on commercial alcohol vendors (and sometimes social hosts) for serving minors or visibly intoxicated persons, typically as a form of direct statutory negligence.
• Imputed contributory negligence is narrowly applied and largely limited to business relationships and joint enterprises; it is generally not imputed between spouses or between parents and children.
• A party held vicariously liable can usually seek indemnification from the primary tortfeasor, shifting the loss to the directly responsible party and distinguishing indemnity from contribution.

Key Terms and Concepts

• Vicarious Liability
• Respondeat Superior
• Scope of Employment
• Employee
• Independent Contractor
• Detour
• Frolic
• Coming-and-Going Rule
• Borrowed Servant
• Abnormally Dangerous Activity
• Non-Delegable Duty
• Apparent Authority / Apparent Agency
• Negligent Entrustment
• Family Car Doctrine
• Joint Enterprise
• Bailor
• Bailee
• Dram Shop Act
• Imputed Negligence
• Indemnification