Vicarious Liability; what it is, what it isn’t

So many students, by the time they get to me when taking the bar, are horribly confused on vicarious liability. (It should be noted that this is the same thing as respondeant superior, but I find vicarious liability easier to spell, so that’s what I’m using!) So many first years are confused about it as well. If this describes you, do not be alarmed, you are not alone! Also, do not distress, it’s one of the more difficult aspects of Torts to grasp, so your confusion does not make you an inept or incapable law student. It makes you normal! (well, as normal as any of us law types can be anyway!)

So, here is the nitty gritty on vicarious liability.

Basically, if vicarious liability applies, that means you are responsible for the torts of someone else. You do not have to be negligent in any way, you’re just on the hook. Think of what the term “vicarious” means outside of law school; when you say “oh, I want to live vicariously through you”, you mean you want to sit back and live that persons’ life, or reap the benefits, without doing anything. Same for vicarious liability – you get to sit back and be liable without doing anything.

So, how is this fair? Well, we only apply vicarious liability to certain relationships; the most common being employer/employee or agency relationships. For one to be vicariously liable for the torts of their employee, the person must 1) be an employee (do not forget to analyze this element. If they flat out tell you the tortfeasor is an employee, fine, no analysis needed, but otherwise in an exam you should show why the tortfeasor is an employee, not an independent contractor, since vicarious liability does NOT apply to independent contractors) and 2) acting within the scope of their employment. For an agency relationship it’s much the same; 1) is the tortfeasor an agent, 2) acting to benefit the principal.

That’s all you need. The employer or principal does NOT, let me repeat that again, does NOT need to be negligent in any way. Do not confuse this with negligent hiring or failure to supervise.

So, what does it mean to be “acting within the scope of your employment/agency?” Well, essentially, is the tortfeasor’s actions going to benefit the employer or agent? For instance, (ex 1) if I send my assistant to get me fountain soda down the street (I do this quite often as I have an unhealthy addiction to 32oz glasses of sugar) and he takes my car and hits someone, he was acting within the scope of his employment, since he was acting to benefit me. (Really, I’m not a good lawyer, professor OR tutor without that sugary caffeine). That means that I, as the employer (or more precisely, LawTutors, LLC) is responsible for his negligence. If you notice, the company did not do anything. LawTutors did not tell him to drive recklessly, nor was LawTutors in the car with him. But my assistant WAS acting within the scope of his employment, so by default, the employer (me or LawTutors) is vicariously liable.

Some people will tell you that vicarious liability only applies to negligence. This is not true. It is just true that it more commonly applies to negligence. This is because it is rare that an intentional tort is within the scope of someone’s employment. For example; (ex 2), what if you are on a plane, and the flight attendant comes by your seat, and not liking your wardrobe choice for the day, punches you? You would not be pleased. In fact, your first inclination might be to sue the airline. Well, the flight attendant is most definitely an employee, but was he or she acting within the scope of their employment? Certainly not. I would find it hard to believe that the flight attendant punched you to further the goals of the airline. If they did, the airline has really strange customer service, even for an airline. So, there is no vicarious liability in this example.

However, (ex 3) what if you are at a bar, (I know, law students are too busy studying for that, but go with me on this hypo…..) and the bouncer roughly “bounces” you, committing a battery. Is the bar vicariously liable? Well sure! The bouncer is an employee, and “bounced” you roughly to benefit the bar. That’s essentially what a bouncer does, so unlike the flight attendant example, the bouncer WAS acting within the scope of his employment. What if the bar specifically said “when bouncing people, don’t be too rough”? Well, the bar is STILL vicariously liable because you can not, as an employer, simply avoid vicarious liability because you tell someone NOT to commit a tort.

Now, going back to example 1. There is most certainly vicarious liability, but could there be other kinds of liability on the part of me or LawTutors? Potentially! What if I knew my assistant was an awful driver. I knew he got into accidents at least twice a year, that he never looked where he was going, constantly disobeyed traffic signs, and to top it all off, was constantly texting while driving. And I was perfectly aware of all of this when I handed him my keys. Now, not only am I vicariously liable (as discussed above) but I may also be liable for my OWN negligence; for giving car keys to someone I knew was an awful driver. This is the most important distinction to make – they are SEPARTE torts. DO NOT, under any circumstances, combine the two. I see students analyze vicarious liability all the time in a hypo similar to example 1 by saying “LawTutors is vicariously liable for assistant’s actions because he was an employee and they gave him the keys knowing he was a bad driver”. NO NO NO. TWO SEPARATE torts. DIFFERENT torts. Hammer that in now, and repeat with me- SEPARATE TORTS.

Let’s do another. In example 3 with the bouncer, we have already established that the bar would be vicariously liable since the bouncer was acting within the scope of his employment. Now, let’s add to the facts. What if the bar knew the bouncer had a history of violence? The bouncer’s background check revealed that he had been in and out of jail on several occasions for assault and battery, and was even ordered to take anger management classes. If that’s the case, perhaps the bar might also be liable for negligent hiring; which is DIFFERENT from vicarious liability. With me so far? Seeing how they are separate torts?

Last one – back to example 2. We established that the airline would not be vicariously liable (unless, in some strange customer relations fail, the airline decided to make it part of their policy to punch poorly dressed passengers as a way to get their flights looking a bit better), but does that mean the poor passenger is without a claim against the airline? Not at all. Perhaps there would be a negligence claim against the airline for failure to supervisor the flight attendant, or failure to properly train the flight attendant on how to deal with passengers, or maybe, if, like the bouncer, the flight attendant had a history of violence, perhaps a negligent hiring claim. But the important thing to remember is that none of these is vicarious liability.

So, remember ONE thing when analyzing vicarious liability. The plaintiff only need establish that the tortfeasor was an employee, acting within the scope of his or her employment, and then the employer is AUTOMATICALLY liable. It should also be noted that this does not let the tortfeasor off the hook, they are ALSO liable. So don’t go committing torts at work thinking you won’t be responsible.

I hope that helped clear up any vicarious liability confusion. Even if your first year does not test it often, it comes up on the bar exam ALL the time, so it’s a good idea to master it now!