Chapter 12

VICARIOUS LIABILITY

This chapter examines several doctrines which may cause one person to become liable for the acts of another. When one person is made liable for the torts of another, we say that the former is “vicariously liable.” The most important ways this can happen are as follows:

• Employers:  An employer is normally vicariously liable for torts committed by his employees.
  • Who is an “employee”:  A will be deemed B’s employee if B gets to control the details of how A does his work.
  • Scope of employment:  The employer is only liable for torts committed by the employee “during the scope of the employment.” Normally, this means that there will be liability only when the employee is acting in furtherance of the employer’s business interests.
• Independent contractors:  Normally, a person who engages an independent contractor is not liable for torts committed by the contractor.
  • Unusually dangerous:  But there is an exception: if the work to be done by the contractor is unusually dangerous, then the person engaging the contractor will be vicariously liable.
• Joint enterprise:  When two or more people engage in an activity “in concert,” each can be held liable for the other’s torts. This is the “joint enterprise” doctrine.

I. VICARIOUS LIABILITY GENERALLY

A. Nature of doctrine:  The doctrine of vicarious liability provides that in some situations, the tortious act of one person may be imputed to another, because of some special relationship between the two. As a result, the latter will be held liable, even though his own conduct may have been completely blameless. The most frequent situation in which vicarious liability exists is that involving tortious acts (usually negligent ones) committed by an employee; under appropriate circumstances, the employer is held vicariously liable for the tort.

1. Other relationships:  In addition to the employer-employee situation, vicarious liability may exist because of an employer-independent contractor relationship, a “joint enterprise” relationship, a family relationship (where a “common family purpose” is involved), etc.