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XVI. Vicarious Liability

Sometimes third parties can be called to account for others’ actions, standing in the shoes of the direct wrongdoers without being negligent themselves. For example, a court might hold a company responsible for the negligence of its employees — an employee’s wrong simply becomes the company’s wrong, even in the absence of independent wrongdoing by the company such as in carelessly hiring someone dangerously unsuited to the desired work. This extension of liability is “vicarious” or “secondary” liability, and it can be important to a plaintiff who might otherwise be unable to collect damages from the shallower pockets of the original wrongdoer.

Our example of vicarious liability of an employer for their employee is also known as respondeat superior. Under the doctrine of respondeat superior, an employer is liable for any actions that fall within an employee’s scope of employment. In other words, McDonald’s might pay for an employee who carelessly spills hot coffee on a customer, but not when he or she goes home and spills hot coffee on a family member.

However, in many situations it is not so clear cut if the employee’s torts occur within his or her employment. Should a company pay for an employee’s car accident that occurs during a lunch break, away from work? Should a club owner pay for the injuries its bartender inflicts upon a customer who refuses to pay?

To answer these questions we consider cases that illustrate both the fundamentals of and exceptions to vicarious liability.