Vicarious Liability Lawyers
What is Vicarious Liability?
Vicarious liability is the process of holding a person accountable for the actions of another person. Generally, the concept of vicarious liability applies to employers being held responsible for the actions of their employees. However, the employee must be acting within the scope of their employment and not on their own personal business.
How Can an Injured Person Prove Vicarious Liability?
Injured individuals that wish to hold employers accountable for the actions of their employees have to establish three elements:
- The employee agreement required the employee to work under the direction and control of the employer.
- The employer had inherent authority to control the employee.
- The employee’s actions are within the scope of employment.
The burden of proof rests on the person wanting to hold an employer accountable. Therefore, obtaining proper records about the scope of employment is important.
What is Scope of Employment?
Generally, scope of employment requires that an employee is acting as expected under the terms of his/her employment. The scope of a person's employment varies according to the specifications and responsibilities of each job.
There a number of cases where a worker would be outside the scope of employment. Such cases include:
- Independent Contractors: Workers who perform for the employer, but are not legally employees. These workers are typically outside the inherent authority of the employer.
- Frolic: employees who engage in behavior outside of the expected terms of employment. For example, an employee expected to deliver packages goes to watch a movie instead and becomes involved in an auto accident on the way to the theater.
- Illegal actions: Actions which are obviously outside the scope of employment, such as assault. However, some occupations which might use such actions might still hold the employer liable. A shopping mall, for example, could be held liable for a security’s guard’s assault on a buyer.
Are Employers Accountable for Actions not Foreseen?
The rule of vicarious liabity sometimes holds employers responsible for actions of their employees whose actions were not foreseen. Employers are held responsible because of several reasons. These include:
- Someone must be held accountable : This means either the employee or employer must bear the loss of the injuries sustained by an injured person.
- Employer had control over the employees during work hours : Because the employer had control over the actions of their employees they should be held responsible.
- Employer benefits from the actions of the employee : The employee brings in profits for the employer. Therefore, the employer should be responsible for any losses.
Are There Any Defenses An Employer Might Use Against Vicarious Liability?
There are a number of defenses an employer can use if sued under vicarious liability. These defenses include, but are not limited to:
- Worker was not an employee under the employer’s control and direction.
- Employee was not acting within the scope of employment
- Employer took reasonable precautions to limit an employee’s offending behavior, such as providing proper training. "Reasonable precaution" is often used in employment vicarious liability cases.
- Applicable defenses in other civil liability cases, such as contributory negligence, the defense that it was the plaintiff who brought the harm to him or herself.
Should I Hire an Attorney?
An experienced contracts attorney can help to advise both employers and employees on any aspects of vicarious liability. In addition, experienced attorneys can help employers to write clear and understandable contracts that disclose what employees' actions are considered under scope of their employment.
Consult a Lawyer - Present Your Case Now!
Last Modified: 04-24-2012 03:59 PM PDT
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