In general, vicarious liability is a process of holding an individual accountable for the actions of another individual. In many cases, the concept of vicarious liability applies in cases of employer liability for the actions of an employee.

Vicarious liability is also known as imputed liability. Although it applies to various types of legal relationships, it is typically associated with an employer-employee relationship that is found in employment law.

Vicarious liability typically occurs when an employee commits a negligent act while on the job which is considered to be unlawful and which causes harm. If the act is done in the course of employment and is within the employee’s scope of the employment, vicarious liability law may apply.

This means that an individual’s employer may legally be held responsible for the injuries or damages which result from their employee’s negligent actions. The intent of vicarious liability rules is to permit an injured party to sue the employer instead of the employee because an employer is more likely to have greater financial resources than an employee.

What do California Vicarious Liability Laws Cover? 

There are three common situations in which vicarious liability applies in California, including:

  • Vicarious liability of an employer for the acts of its employees, also called California’s respondeat superior law;
  • Parental liability for damages which are caused by their children; and
  • Criminal liability under California’s conspiracy law, Penal Code 182 PC.

In California, pursuant to the respondeat superior law, an employer can typically be held vicariously liable for the negligence of employees. For a California employer to be liable, the employee must have been acting within the ordinary scope of their employment. In other words, the employee must be engaging in an activity that the employer may reasonably expect them to do at their job, whether or not the activity is a part of the regular job duties of that employee.

It is also important to note that an employer may be directly liable for an individual’s injury pursuant to California’s law regarding negligent hiring, retention, and supervision of an employee. This applies if the employer knew or should have known that the employee was a risk to others.

What are Some Common Vicarious Liability Issues with Employers? 

As previously noted, an employer may be held vicariously liable for the actions of their employee when the employee acts in a negligent manner which causes an injury to another individual while they were on the job and performing a task which was within their scope of employment. As an example, suppose an employee works at an ice skating rink where they are required to clean the ice each hour. 

Suppose that during their assigned work hours one day, they decided to instead drink and operate the Zamboni, or ice cleaning and resurfacing machine, and their intoxication causes them to hit someone. Depending upon other factors, it is very likely that an employer may be held vicariously liable for the actions of their employee which caused the individual’s injuries.

An employer may be held vicariously liable for their employee’s actions in situations where:

  • An employer knowingly hired an unqualified employee who causes harm as a result due of their lack of skills;
  • An employee was or became unfit, either mentally or physically, for a position, and their supervisor was aware of the issue, but allowed them to continue working anyway;
  • The employer failed to provide adequate supervision over their employee, which then led to an injury;
  • The employer has either no policies and procedures or insufficient policies and procedures in place, which led to the occurrence of significant damages or injuries; 
  • The employer was aware of harassment which was occurring in the workplace but took no action to prevent, stop, or correct the behavior; and
  • The employer failed to properly train or direct employees regarding their assigned job duties, which led to the occurrence of injuries or damages. 

The previous examples are just some of the circumstances in which an employer may potentially be held vicariously liable for the actions of an employee. The list is, of course, not comprehensive, so an individual would be best served by contacting an employment attorney for more information regarding vicarious liability claims.

There are several defenses which an employer may present if they are sued under the theory of vicarious liability, including:

  • The individual was not an employee who was under the employer’s direction and control;
  • The employee’s actions were not within the scope of their employment;
  • The employer took reasonable precautions to limit the employee’s behavior, including providing proper training; and
  • Applicable defenses which are available in other types of civil liability cases, including contributory negligence.

How Can I Obtain Damages for a Vicarious Liability Dispute? 

An individual who is injured and wants to hold an employer accountable for the actions of an employee is required to establish three elements, including:

  • The employee agreement required the employee to work under the direction and control of the employer;
  • The employer possessed the inherent authority to control the employee; and
  • The actions of the employee were within the scope of employment.

The burden of proof rests with the individual who is attempting to hold an employer accountable. Because of this, obtaining proper records regarding the scope of employment is necessary.

In general, the scope of employment requires that the employee was acting as expected under the terms of their employment. The scope of an individual’s employment may vary according to the responsibilities and specifications of each job. 

There are numerous situations when an individual may be outside of their scope of employment, including:

  • An independent contractor, or a worker who performs work for an employer but is not legally considered an employee;
  • A frolic, which occurs when an employee engages in a behavior that is outside of their expected terms of employment. For example, if the employee is expected to deliver packages and they choose instead to go to the movie theater and have an automobile accident on the way; and
  • Illegal acts, including assault, fall outside the scope of employment. In some occupations, however, the employer may still be subjected to liability. For example, at a shopping mall, the shopping mall may be held liable for a security guard’s assault on a customer.

Vicarious liability, in some cases, holds that an employer is responsible for the actions of their employee even if those actions were unforeseen. This may occur when:

  • The employer had control over the employee during work hours and, therefore, should be held responsible; and
  • The employer benefited from the actions of the employee. Because the employee brings in profits for their employer, the employer should be responsible for losses.

Do I Need to Hire a California Employment Lawyer? 

Yes, it is essential to have the assistance of a California employment lawyer for help with any vicarious liability issues you may have, whether you are an employee or an employer. Your lawyer can assist you with preserving your rights, determining if you have a claim, and advising you regarding possible available remedies.

If you are the employer who is being sued for vicarious liability, your attorney can determine if there are any defenses available to you and provide guidance and advice regarding the potential liabilities you may be facing due to the actions of an employee. Your attorney can also assist you in drafting employment contracts which include provisions regarding what employee actions are considered to be within the scope of their employment.