3 Vicarious Liability, Revisited, and Expanded.

 

Under a theory of “vicarious liability,” an employer is generally liable for the torts committed by its employees while the employees are working within the scope of their employment. This doctrine allows victims of tortious conduct to recover against the employer for the conduct by their employee under certain circumstances, which is often of profound benefit to the victim given the likely difference in capacity for compensation between the employee and employer. As this doctrine was developing in 18th-century England, jurists labeled it with the Latin phrase, “respondeat superior,” meaning “let the person in the position of higher power respond” for the wrongdoing of the person in their employment or supervision. The terms used to characterize labor relations were “master” and “servant,” rather than the more modern employer and employee or principal and agent. Vicarious liability is a very important doctrine that you will see again several times in this course, especially with respect to negligence and how to consider the effects of having multiple parties at fault. It is also significant in a number of upper-division courses, so it’s worth taking careful note when you see it recurring in Torts.

 

Vicarious liability can be taught at many different points in an introduction to tort law, because it plays a role in so many cases, and it is not limited to one kind of tort. One way to understand its effect, however, is to consider it a form of strict liability: the employer is not necessarily at fault but under the doctrine, liability is allocated to the employer anyway, by virtue of the relationship between employer and employee. Note that it is always possible for an employer also to be separately at fault: consider a scenario in which a delivery driver for a company drives negligently—under the influence of drugs—while delivering a pizza. When he causes a car accident that injures someone, assuming he is an employee acting in the scope of employment, the employer would ordinarily be liable for the victim’s injuries despite their being no fault on the part of the employer who wasn’t driving or present. An alternate (or additional) theory of liability could seek to show that the employer’s hiring, training or retention was also negligent. This is not a vicarious liability claim but an additional claim seeking to prove something else. Perhaps the employer overlooked a prior record of DUI’s that a background check could have brought to light (negligent hiring), or failed to make its rules and policies clear (negligent training and supervision) or failed to fire the driver after the company discovered he routinely had been delivering their product while stoned (negligent retention). Just because a vicarious liability claim exists does not mean that a negligence claim is also available of course but it is worth remembering to consider that question as well.

 

The general rule of vicarious liability is that employers are liable for the tortious conduct of their employees when that conduct is done in the interests of their employer. The most common examples arise in negligence but it is possible for employees to commit intentional torts while serving their employer (such as when a bouncer commits a technical battery by escorting a patron out of a nightclub, but accidentally harms the patron, for instance). More commonly, employee conduct that is intentionally tortious falls outside the employer’s responsibility. The key is if the employee is acting within or outside “the scope of employment.” The Restatement 2nd of Agency Sec. 237 lays out the factors to consider in determining whether something falls within the scope of employment (and it uses the old language of the common law, “master” and “servant”):

 

To be within the scope of employment, an act must be of the sort authorized, done within space and time limits fixed by the employment and accompanied by an intention to perform service for the master. See §§ 233-236. If, having in mind either his master’s business and his own, or only his master’s business, the servant departs too far from the space or time limits, he no longer acts within the scope of employment.

 

These principles are widely applied in tort law with respect to employers and their employees as well as “principals” and their “agents,” which permits a broader scope of potential liability than if the rule were applicable only to employers and employees. There is an entire Restatement for the law of agency, in fact, because the concept of agency plays a significant role in corporate law, partnership law, and employment among others. Vicarious liability does not typically apply to the work of contractors one hires. Put in the form of a rule: a hiring party is not vicariously liable for the torts of their independent contractor.

 

imageExam tip: a vicarious liability claim always requires an underlying act of tortious conduct. If there is no tort (because the elements are not met or because there is a successful defense), then you need not reach the issue of vicarious liability. Vicarious liability is not a rule that determines liability based on conduct; it’s a rule that allocates liability based on a pre-existing determination of liability (if the tests for vicarious liability are met). Always be sure to identify the underlying tort first, and then consider whether vicarious liability will apply to it.

The rule that hiring parties are not liable for the torts of their independent contractors has numerous rationales. Unlike employees, independent contractors are generally thought to stand on their own, financially and legally. They are usually entities with their own insurance (“licensed, bonded and insured” may be a phrase you have heard), and they are likely to possess the desire and capacity to control their own processes. Thus, they have the incentives to optimize for caution and efficiency. They are also deemed (presumptively) to possess skill and training in their field. These factors tend to mean that tort law’s purposes are served by fixing liability for their conduct with the independent contractors themselves. However, courts are concerned that parties might attempt to contract so as to characterize their working relations as hiring party/independent contractor, rather than employer/employee, in an attempt to evade liability. In fact, this points to a larger policy concern. When you take business organizations, you will learn that there is an ongoing concern about strategic behavior, such as deliberate undercapitalization to enable parties to claim they are “judgement proof,” or otherwise structuring entities and business practices to evade the liability that tort law’s principles would ordinarily allocate following traditional rules and doctrines. Corporate law has developed many means of trying to forestall this strategic behavior, and courts may “pierce the corporate veil” to look through whatever structures entities are using in their potentially unlawful behavior. Somewhat similarly, in torts cases, courts may “look through” contracts that treat parties as independent contractors if those appear to be suspicious. The Restatement on Agency provides guidance on how to assess hiring relationships and when to determine that there is, in fact, an employer/employee relationship, whatever the parties might have attempted to create. It does so, in part, by defining the relationship in terms of actual control or the right to control.

 

Scope of Employment—Restatement (Second) of Agency § 220. Definition Of Servant

 

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

 

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

 

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

 

Note: Agency Second has been superseded by Agency Third, which was adopted in 2005 and published in 2006. The case law you read will often reflect a reliance on these factors. Not all of them are necessarily mentioned in each case (and you should not feel the need to apply all 10 of them on an exam question!) Often, courts pick the ones most salient to the facts at bar (and you should do the same if encountering the issue on an exam).

 

Check Your Understanding

 

A motorcyclist, Mo, is injured in a collision by a van driven by Drye. Drye was negligent in his driving and the only one at fault in the accident. Drye delivers newspapers under a contract with the Arizona Herald, a large state-wide news publication.

 

Which of the following statements below most support Mo’s attempt to hold the Herald vicariously liable for Drye’s negligent driving?

 

Drye is a salaried employee of the newspaper driving a van owned by the Herald. When Drye hit Mo, he was running personal errands, which he was permitted to do during his lunch hour, even using the company van.

Drye is an independent contractor and owns the delivery van, which he maintains, services and insures. He has been in the newspaper business for many years and generally subcontracts his own drivers to carry out his delivery obligations under his contract with the Herald as well as under contract with other local paper periodicials. He happened to be driving one of the delivery routes at the time he collided with Mo.

Drye is an independent contractor who uses the Herald’s van. He drives to the Herald to pick up the van in specific windows of time set by the Herald to ensure timely delivery on their circulation schedule. He is paid twice a month including on days off and his six-month contract has been renewed regularly for several years. He is welcome to deliver newspapers for other entities on his own time but bound not to do so more than 25 % of the delivery days he works for the Herald and only so long as it does not interfere with his work for the Herald.

Drye is an independent contractor who uses the Herald’s van. He drives to the Herald to use the van when it works best for his schedule. He is paid by the number of newspapers he delivers, so he has an incentive to deliver more papers. When the newspaper suspends coverage during certain holidays, he is not paid for time off. He is free to deliver for other papers as he chooses.

 

C is correct.

 

A is incorrect. Although the test for vicarious liability can be satisfied when an employee commits torts, it also requires that the employee be acting in the scope of employment, which the facts in A expressly disclaim. Even though Drye was using the company van, he was not “on” but “off” work, and thus not in the scope of employment.

 

B is incorrect. In addition to the general rule that an independent contractor’s tortious conduct usually does not give rise to liability to the hiring party (the Herald), here the signs point to extensive experience and skill in the industry. Under (b), (c), (d) and (j), Drye looks like someone running his own business, with employees of his own. He owns his own van so under (e) he also appears to be an independent contractor inst

 

C is correct. An independent contractor’s tortious conduct usually does not give rise to liability to the hiring party (the Herald). The Restatement Section 220 lays out factors that may be considered in converting an independent contractor into an employee for the purposes of vicarious liability analysis. Drye uses the Herald’s van, which under 220 (e) suggests the tools and instrumentalities are not his but the employers. Similarly, other factors point towards his status as an employee rather than an independent contractor: he follows the Herald’s schedule and direction and is bound by competitive restrictions the Herald imposes on him (a) and is paid more like a salaried employee than by the individual job, in a manner that provides fairly stable longterm employment. (g)

 

D is incorrect. D starts out similar to C and the same general rule would apply: an independent contractor’s tortious conduct usually does not give rise to liability to the hiring party (the Herald). Under the Restatement Section 220, however, D fares differently from C. Under (a), it appears that Drye has the ability set the terms of the work himself, and he is paid by the job rather than by regular salary (g). Even though he still uses the company’s van, which cuts in favor of employee status under (e), a single factor is not usually enough to determine the analysis on its own.

 

1 Echoing the earlier distinctions between civil and criminal law, note that civil assault and battery are torts, dealt with in private law, which may allow the victim to seek money damage for their harms or to stop future harms by the assailant. Criminal assault and battery are crimes, dealt with in public law, which may allow the state or government to prosecute and penalize the assailant. It’s important to keep these distinct because the elements necessary to prove that the conduct was criminal differ from the inquiry into whether the conduct was tortious. Additionally, the remedies and the burden of proof differ.
2 The city and the railway company raise no question as to their joint liability, if there is any liability.
3 It is worth noting at the outset of your studies that tort law is capricious that way; often the same issue can come out differently in different jurisdictions or on the basis of minor factual diferences that seem as though they ought to be trivial rather than dispositive of the case. It frustrates students who would like for it to be more orderly or predictable. In looking for the rule on a given issue, casebooks sometimes give one rule for Virginia and a different rule for its neighboring state of North Carolina. As a law student, I recall finding this extremely frustrating; as a law professor, I try to put students on notice that this will be the case, and to explain how it reflects tort law’s commitment to resolution of certain issues at the community level, permitting jurisdictions, and lay decision making, on many importante issues.
4 Editor’s note: “Constructive” is a term of art that indicates that the law will make an assumption, regardless of the truth. Constructive possession would mean that whether or not Arthur actually possessed the machine, he could, for legal purposes, be assumed to be a possessor. The court immediately rejects this idea but the word “constructive” will return later in the course as a way of signaling that the law is making an assumption or relying on a legal fiction for particular purposes.
5 The underlying legal reasoning for the doctrine is illustrated in this case: “If the servants of A with his cart run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So where a carter’s servant runs his cart over a boy, action lies against the master for the damage done by this negligence: and so it is if a smith’s man pricks a horse in shoeing, the master is liable. For whoever employs another, is answerable for him, and undertakes for his care to all that make use of him. The act of a servant is the act of his master, where he acts by authority of the master.” Jones v Hart, 90 E.R. 1255 (Court of King’s Bench) 1703.
6 Toms’ relatives and landlord were also contacted by Calvary, but all declined permission to allow Calvary to host the event on their property.
7 Firework shooters must be certified in the State of Maryland. Applicants must submit a “Firework Shooter Testing and Permit Application” to the Office of the State Fire Marshal in order to “to possess, sell or use explosives of any kind in the State of Maryland.”
8 “Dean Thayer pointed out the error in the popular assumption that the rule of Rylands v. Fletcher makes the defendant liable for all consequences in fact resulting from his conduct. This is precisely what the rule of the case does not do; it makes [the] defendant liable … only for proximate consequences, not for remote consequences.” Fowler V. Harper, Liability Without Fault and Proximate Cause, 30 MICH. L.REV. 1001, 1005 (1932) (emphasis in original).
9 Under certain circumstances, causes of action may exist in cases involving fireworks liability under the theories of negligence or nuisance. See Crowley v. Rochester Fireworks Co., 183 N.Y. 353, 76 N.E. 470 (1906) (“[T]here may be negligence in the character of the fireworks used on a particular occasion as well as in the method of their discharge.”); Little v. Union Trust Co. of Maryland, 45 Md.App. 178, 183, 412 A.2d 1251, 1254 (1980) (discussing possible nuisance liability for shooting fireworks in the street).
10 In the petition for writ of certiorari, Toms states “This Court … can expand the factual application of this tort to instances where the sudden, abnormal noise of a fireworks display, adjacent to livestock, can create strict liability.”
11 Letter from John Adams to Abigail Adams, 3 July 1776, MASS. HIST. SOC’Y, www.masshist.org/digitaladams/archive/doc?id=L17760703 jasecond [https://perma.cc/P22L-DMRX].
12 Editor’s note: “Trespass” here is a reference to an older form of legal action involving a direct injury, and it does not necessarily or only refer to trespass in the ordinary sense in which you are probably familiar with it, meaning unauthorized entry onto someone else’s land. “Lies” here means “exists as a viable legal action.”
13 Editor’s note: This now is a reference to trespass in the ordinary sense of unauthorized entry on someone else’s land, which the law calls a “close.” 87 C.J.S. Trespass § 66. Here, the “close” is a reference to the property owned by the plaintiff, Swan.
14 A Black’s Law Dictionary—or Google—will help you cut through the Latin terms you’ll encounter in law school. If an unfamiliar term doesn’t obstruct your understanding, you might just keep reading without looking it up, and only look it up after you’ve read the case so that it doesn’t break your flow. However, I would strongly encourage you to look up a Latin phrase (or other term) if you’re still not sure what it means after reading the case. Here, “causa causans” means the primary or originating cause, the cause of the things (or even the causes) that follows that first cause. It’s used to trace damages back to an original source of liability.
15 https://www.officialdata.org/us/inflation/1905?amount=14322.50 Using a more complicated set of inputs, it could be considered $2,690,000 in relative income using 2019’s currency.
16 https://www.officialdata.org/canada/inflation/1935?amount=50
17 The underlying legal reasoning for the doctrine is illustrated in this case: “If the servants of A with his cart run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So where a carter’s servant runs his cart over a boy, action lies against the master for the damage done by this negligence: and so it is if a smith’s man pricks a horse in shoeing, the master is liable. For whoever employs another, is answerable for him, and undertakes for his care to all that make use of him. The act of a servant is the act of his master, where he acts by authority of the master.” Jones v Hart, 90 E.R. 1255 (Court of King’s Bench) 1703.
18 White women and children would wait in this room to be protected from the hustle and bustle of the railroad station, apparently. Here, the husband has deposited his wife and children while he goes back out on the town on some sort of errand as they all await the train. At least in this railroad station, an African-American woman was employed to keep the waiting room clean and orderly.
19 The “assignments of error” mentioned here are the grounds on which the case is being appealed, namely, that the court below made errors that this appellate court should address (in the ways in which the appellant is seeking relief).
20 Editor’s note: “res gestae” means the things or circumstances relating to case at hand.
21 For example, the risks inherent in the simple process of taking a common blood sample are said to include hematoma, dermatitis, cellulitis, abscess, osteomyelitis. septicemia, endocarditis, thrombophlebitis, pulmonary embolism and death, to mention a few. (Harrison, Principles of Internal Medicine (5th ed. 1966) pp. 726, 1492, 1510-1514.) One commentator states that California law does not require that the “patient be told too much.” (Hagman, The Medical Patient’s Right to Know, supra, 17 U.C.L.A. L.Rev. 758, 766.)

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