Vicarious liability is the process of holding a person accountable for the actions of another person. Often, the concept of vicarious liability applies to employer liability for the actions of their employees. 

How Can an Injured Person Prove Vicarious Liability of an Employer?

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 or 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 may be outside the scope of employment:

  • Independent Contractors: Workers who perform for the employer, but are not legally employees.
  • 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 Acts: Illegal acts, such as assault, fall outside the scope of employment. However, some occupations may still subject the employer to liability. A shopping mall, for example, could be held liable for a security’s guard’s assault on a buyer.

Are Employers Accountable for Unforeseeable Actions?

The rule of vicarious liability sometimes holds employers responsible for actions of their employees whose actions were unforeseen.  These include:

  • 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 a theory of 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.
  • Applicable defenses in other civil liability cases, such as contributory negligence.

Should I Hire an Attorney?

An experienced employment or personal injury 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.