7 Vicarious Liability 7 Vicarious Liability

7.1 Restatement (Second) of Agency on Respondeat Superior 7.1 Restatement (Second) of Agency on Respondeat Superior

As we have seen, in some circumstances, a defendant may be subject to liability for injury caused to a plaintiff by a third-party injurer. In cases where the defendant has a duty to protect the plaintiff or where an intervening act by a third-party is foreseeable, the defendant is liable because the defendant breached his duty to exercise reasonable care and that breach of duty was a cause-in-fact of harm to the plaintiff.

Vicarious liability is different. In cases of vicarious liability, a defendant is subject to liability for injury caused by a third-party injurer based on the relationship between the defendant and the third-party injurer, even where the defendant did not breach a duty of care to the plaintiff and the defendant's conduct was not a cause-in-fact of harm to the plaintiff.

One common type of vicarious liability is the liability of an employer for the negligence of her employees. This type of vicarious liability is known as respondeat superior, Latin for "let the master answer" [for the negligence of her employee]. A plaintiff seeking to hold a defendant liable under respondeat superior must prove that (1) the employee is subject to liability for negligence under all five elements of negligence liability as applied to the employee’s conduct and (2) the defendant (i.e. the employer) is liable for the employee's negligence under the elements of respondeat superior. In such a case, the employer is not subject to liability for its own negligence in hiring, training, or supervising the employee (which would entail applying the five elements of negligence liability to the conduct of the employer) but rather because the employer is answerable for the employee’s negligent conduct which caused injury to the plaintiff.

Liability under respondeat superior requires that the plaintiff establish (1) a master-servant relationship between the employer and the employee and (2) that the negligent conduct of the employee was within the scope of his employment. The master-servant element of respondeat superior draws a distinction between an employee and an independent contractor. Generally, an employer can be held vicariously liable under respondeat superior for the negligence of her employees but not for the negligence of independent contractors. To better understand the distinction between an employee and an independent contractor, consider the example of two people who work in a store. A store clerk is typically considered an employee. The clerk’s hours and pay are determined by the store owner, and the clerk performs his job as instructed by the store owner. By contrast, an electrician hired to fix the lighting in the store is typically considered an independent contractor. The electrician sets his own hours and fees for service, and the electrician performs the job as he sees fit using his own tools.

The following sections of the Restatement (Second) of Agency that provide more detailed rules for the two elements of respondeat superior.

Restatement (Second) of Agency (1958)

§ 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.

§ 228 General Statement

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

§ 229 Kind of Conduct within Scope of Employment

(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(d) the extent to which the business of the master is apportioned between different servants;

(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

Torts

Legal Claims for Civil Wrongs