Vicarious Liability (Respondeat Superior)

The rule that makes an employer liable for harm its employee causes while doing the job - the reason the trucking company, the hospital or the delivery firm is the defendant, and the reason "independent contractor" is fought over so hard.

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What it means

Vicarious liability holds one person responsible for another's wrong without any fault of their own. Its main form is respondeat superior: an employer is liable for the negligence of an employee committed within the scope of employment. The employee remains personally liable too, but the employer is the party with insurance and assets, which is why an injury claim against a driver, a nurse, a security guard or a technician is usually a claim against the company they work for. The employer's own carelessness is irrelevant; what matters is the relationship and whether the act was within the job.

"Scope of employment" is where these cases are decided. Conduct is generally within scope if it is the kind the employee was hired to do, occurs within the authorized time and place, and is motivated at least in part by a purpose to serve the employer. A delivery driver's crash on the route is within scope; the same driver's crash on a personal errand across town is usually not, and an ordinary commute is excluded under the "going and coming" rule in most states. Intentional wrongs - an assault by an employee - are harder: some states hold the employer liable where the job created the risk or the act was a foreseeable outgrowth of it, and others require that the act was meant to serve the employer. Sexual misconduct by an employee is treated as outside scope in most states, leaving the injured person to a direct claim for negligent hiring, retention or supervision, which requires proof of the employer's own fault.

An employer is generally not vicariously liable for the negligence of an independent contractor, which is why the classification is contested in injury cases as fiercely as in wage cases. The exceptions are substantial: non-delegable duties (a hospital's duty to emergency patients, a landowner's duty to keep premises safe), inherently dangerous work, and apparent agency, where the injured person reasonably believed the contractor was the company's employee because the company presented it that way. Parents are not vicariously liable for their children's torts at common law, though many states impose limited liability by statute, and vehicle owners are liable in some states for a permitted driver's negligence.

Where this comes from

When people hire a lawyer for this

The first thing a lawyer does in an injury case is identify every party who may be vicariously liable, because the individual who caused the harm is rarely the one who can pay, and the deadline to add a defendant is the same as the deadline to sue. The second is to pin down the relationship - employee or contractor, on duty or off, whose vehicle, whose premises - from records the company holds and will not volunteer. If the company says the person was an independent contractor, that is the start of the argument, not the end of it.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Assumption of Risk and Liability WaiversThe defense that a person who knowingly took on a danger cannot complain of it - and the signed waiver that tries to make that agreement explicit before the gym, the ski slope or the trampoline park.
• Comparative and Contributory NegligenceRules that decide what happens to a claim when the injured person was also partly careless - and they differ sharply from state to state.
• Contingency FeeA fee arrangement in which the lawyer is paid a percentage of what is recovered, and is paid no fee if nothing is recovered.
• Damages in a Personal Injury ClaimThe categories of loss an injured person can be compensated for - the bills and lost earnings, the pain and the lost enjoyment of life - plus the separate and rarer category meant to punish, and the state caps that limit some of them.
• Dog Bite LiabilityWho pays when a dog injures someone - the strict-liability statutes most states have and what they cover, the older "one-bite" rule that survives in the rest, negligence and leash-law claims that exist under either, the defenses of trespass and provocation, landlord and keeper liability, how homeowners' insurance responds, and the dangerous-dog proceedings that run alongside the civil claim.
• Dram Shop and Social Host LiabilityWhen a bar, restaurant, liquor store or private host can be held responsible for injuries caused by someone they served alcohol to - the statutes that create the claim in most states and the very different standards they set (visibly intoxicated, under the legal drinking age, or both), the states with no claim at all, social-host rules for minors, what must be proved, the notice requirements, and who can sue.
• Emotional Distress Claims (IIED and NIED)When the law compensates psychological harm on its own, without a physical injury - the intentional-infliction tort and its "outrageous conduct" threshold, the negligent-infliction claim and the limits states put on it (the impact, zone-of-danger and bystander rules), the proof a claim needs, and how these differ from the emotional-distress damages that ride on any ordinary injury claim.
• Independent Medical ExaminationAn examination by a doctor chosen and paid for by the other side - routine in injury, disability and workers' compensation claims, and not treatment.
• Insurance Bad FaithAn insurer's duty to deal fairly with its own policyholder - and the separate claim that arises when it does not.
• Joint and Several LiabilityWhat happens when more than one person is responsible for the same injury - the traditional rule that each is liable for the whole judgment, the modern rules in most states that limit it by share of fault or by type of damages, contribution between defendants, the effect of settling with one of them, and why the rule decides who actually pays when one defendant is uninsured or bankrupt.
• Loss of ConsortiumThe claim of a spouse - and in some states a child or parent - for what an injury to a family member took from the relationship itself: companionship, affection, household services and the marital relationship, what has to be proved, why it is derivative of the injured person's claim, and how it is pleaded, valued and settled.
• NegligenceCarelessness that the law treats as a legal wrong because it fell below the level of care a reasonable person owed to someone else.
• Negligence Per SeThe rule that breaking a safety statute - running a red light, serving alcohol to a minor, violating a building code - can itself establish that the defendant was careless, without the jury deciding what a reasonable person would have done.
• Premises LiabilityThe responsibility of whoever owns or controls property for injuries caused by its condition - the slip on the wet floor, the broken stair, the unlit car park - and the rules that make the visitor's reason for being there matter.
• Product LiabilityA claim against the maker or seller of a product that injured someone because of how it was designed, how it was made, or what it failed to warn about - and the federal rules that can shut some of those claims down.
• Res Ipsa LoquiturThe doctrine that lets an injured person prove negligence from the accident itself when the cause is unknown but the event is one that does not ordinarily happen without carelessness - its elements, the exclusive-control requirement and how it has loosened, what the doctrine does procedurally (an inference, or a presumption shifting the burden), and where it is and is not used.
• Strict LiabilityLiability for harm without any showing of carelessness - the rule for abnormally dangerous activities, for defective products in most states, and, under many state statutes, for the owner of a dog that bites.
• Subrogation and Medical Liens on a SettlementWhy an injured person does not keep the whole settlement - the right of health insurers, Medicare, Medicaid, ERISA plans, workers' compensation carriers and hospitals to be repaid from a recovery for the treatment they paid for, how each kind of lien is created and enforced, the rules that reduce them, and why the liens have to be resolved before the check is cashed.
• Suing the Government for an Injury (Tort Claims Acts)Why an injury caused by a government employee or a public property defect follows different rules - sovereign immunity and the statutes that waive it, the written claim that must be presented to the agency before any lawsuit and the short deadline for it, the exceptions that keep immunity (discretionary functions, most intentional torts, certain activities), damage caps, and the no-jury and no-punitive-damages rules.
• Workers' CompensationThe state no-fault system that pays medical care and part of lost wages for an injury at work without any proof of fault - and, in exchange, takes away the right to sue the employer, though not the right to sue anyone else who caused it.
• Wrongful Death ClaimA claim brought by surviving family members or an estate when someone dies because of another party's wrongful act.

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