Learning Objectives

know in what circumstances a primary will it is in vicariously liable because that torts committed by employees. Recognize the difference in between agents whose tort and criminal liability might be imputed to the employer and those whose liability will certainly not it is in so imputed. Understand when the primary will it is in vicariously liable for intentional torts committed by the agent. Define what is meant by “the limit of employment,” in ~ which the agent’s actions may be attributed come the principal and also without i beg your pardon they will certainly not. Surname special cases of vicarious liability. Describe the principal’s liability because that crimes committed by the agent.

The distinction between Direct and Vicarious Liability

When is the primary liable for injuries the the agent causes another to suffer?

Direct Liability

There is a difference between torts triggered by the major himself and also torts of which the primary was innocent. If the principal directed the agent to go a tort or knew the the aftermath of the agent’s delivering out his instructions would bring harm come someone, the primary is liable. This is an application of the general common-law principle the one cannot escape legal responsibility by delegating an unlawful act to another. The syndicate that hires a hitman is as culpable that murder together the man who traction the trigger. Similarly, a major who is negligent in his usage of agents will be hosted liable for their negligence. This preeminence comes right into play once the principal stops working to supervise employee adequately, gives faulty directions, or rental incompetent or unsuitable civilization for a details job. Imposing liability on the major in these situations is readily justifiable due to the fact that it is the principal’s own conduct the is the underlying fault; the principal below is directly liable.

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Vicarious Liability

But the principle of liability because that one’s agent is lot broader, expanding to acts of i beg your pardon the principal had actually no knowledge, that he had actually no intention come commit no one involvement in, and also that he might in truth have specifically prohibited the agent from engaging in. This is the principle of respondeat superiorThe Latin term for the master-servant doctrine. (“let the grasp answer”) or the master-servant doctrineA doctrine under i m sorry the employer is liable because that torts cursed by the employee in the limit of employment., which imposes ~ above the major vicarious liabilityLiability occurs indirectly through the action of another. (vicarious way “indirectly, as, by, or through a substitute”) under i beg your pardon the major is responsible for acts cursed by the agent within the border of the employment (see number 10.2 "Principal’s Tort Liability").

Figure 10.2 Principal’s Tort Liability


The modern basis because that vicarious liability is occasionally termed the “deep pocket” theory: the primary (usually a corporation) has actually deeper pockets than the agent, an interpretation that it has actually the wherewithal to pay for the injuries traceable one means or one more to events it collection in motion. A million-dollar commercial accident is in ~ the means of a firm or that insurer; that is usually not within the method of the agent—employee—who brought about it.

The “deep pocket” that the defendant-company is no always an extremely deep, however. For many tiny businesses, in fact, the principle of respondeat superior is one of life or death. One example was the closeup of the door in mountain Francisco the the much-beloved Larraburu brothers Bakery—at the time, the world’s second largest sourdough bread maker. The bakery was held liable because that $2 million in damages after among its shipment trucks injured a six-year-old boy. The bakery’s insurance allowance policy had actually a border of $1.25 million, and also the bakery could not absorb the excess. The Larraburus had actually no selection but to cease operations. (See http://www.outsidelands.org/larraburu.php.)

Respondeat remarkable raises three complicated questions: (1) What type of agents can produce tort liability because that the principal? (2) Is the principal liable because that the agent’s knowingly torts? (3) was the agent acting within the border of his employment? us will take into consideration these questions in turn.

Agents for Whom Principals room Vicariously Liable

In general, the broadest legal responsibility is imposed on the master in the situation of tortious physical conduct by a servant, as debated in thing 9 "Relationships in between Principal and also Agent". If the maid acted in ~ the border of his employment—that is, if the servant’s wrongful conduct occurred while performing his job—the master will be responsible to the victim for loss unless, together we have actually seen, the victim was an additional employee, in which event the workers’ compensation system will it is in invoked. Vicarious tort legal responsibility is mostly a function of the employment relationship and not company status.

Ordinarily, an individual or a company is no vicariously liable because that the tortious plot of elevation contractors. The plumber who rushes come a client’s residence to repair a leak and also causes a traffic accident walk not subject the homeowner to liability. But there are exceptions to the rule. Generally, these exceptions loss into a category of duties that the legislation deems nondelegable. In part situations, one person is mandatory to carry out protection to or treatment for another. The fail to carry out so results in liability even if it is or not the injury befell the other due to the fact that of an elevation contractor’s wrongdoing. Hence a homeowner has a duty come ensure the physical conditions in and also around the house are no unreasonably dangerous. If the owner hires an elevation contracting certain to dig a sewer line and also the contractor negligently fails to safety passersby against the hazard of falling into an open up trench, the homeowner is liable since the duty of care in this instance cannot be delegated. (The contractor is, of course, responsible to the homeowner for any type of damages payment to an injured passerby.)

Liability because that Agent’s intended Torts

In the nineteenth century, a major was rarely organized liable for intentional wrongdoing through the agent if the major did no command the action complained of. The thought was the one might never infer government to commit a willfully wrongful act. Today, liability because that intentional torts is imputed come the primary if the certified dealer is acting to additional the principal’s business. View the really disturbing Lyon v. Carey in section 10.4.2 "Employer’s Liability for Employee’s intentional Torts: scope of Employment".

Deviations indigenous Employment

The general preeminence is that a major is liable because that torts just if the servant cursed them “in the scope of employment.” however determining what this means is not easy.

The “Scope that Employment” Problem

It might be clear that the human being causing an injury is the agent of another. But a principal cannot it is in responsible because that every action of one agent. If one employee is following the letter that his instructions, it will be simple to identify liability. However suppose an agent deviates in some method from his job. The standard test of legal responsibility was set forth in an 1833 English case, Joel v. Morrison.Joel v. Morrison, 6 Carrington & Payne 501. The plaintiff was operation over ~ above a highway by a speeding cart and also horse. The driver to be the employee that another, and also inside was a fellow employee. There to be no inquiry that the driver had actually acted carelessly, however what he and his fellow employee to be doing on the road where the plaintiff was injured was disputed. For weeks before and after the accident, the cart had never been pushed in the vicinity in i m sorry the plaintiff was walking, no one did the have any kind of business there. The ide was the the employees could have gone out of their method for their own purposes. Together the an excellent English jurist Baron Parke placed it, “If the servants, being on your master’s business, take it a detour to contact upon a friend, the grasp will be responsible.…But if he was going ~ above a frolic that his own, without gift at all on his master’s business, the master will no be liable.” In applying this test, the court hosted the employee liable.

The check is for this reason one the degree, and also it is not constantly easy come decide when a detour has become so good as to be transformed right into a frolic. Because that a time, a fairly mechanical ascendancy was invoked to help in do the decision. The court looked to the servant’s purposes in “detouring.” If the servant’s mental was solved on accomplishing his own purposes, climate the detour was hosted to be outside the scope of employment; hence the tort was not imputed to the master. But if the servant also intended to accomplish his master’s purposes throughout his leave from the letter of his assignment, or if he committed the wrong while returning to his master’s task after the perfect of his frolic, then the tort was organized to be in ~ the limit of employment.

This test is not constantly easy come apply. If a hungry deliveryman stop at a restaurant external the common lunch hour, intended to continue to his next shipment after eating, he is within the border of employment. However suppose the decides to take it the truck house that evening, in violation of rules, in order to get very early start the following morning. Intend he decides to prevent by the beach, which is far away from his route. Go it make a difference if the employee knows that his deliverymen perform this?

The zone of hazard Test

Court decisions in the last forty years have moved toward a different standard, one that looks come the foreseeability that the agent’s conduct. Through this standard, an employer might be held liable for his employee’s conduct also when devoted entirely come the employee’s own purposes, as lengthy as it was foreseeable the the agent might act as he did. This is the “zone that risk” test. The employer will certainly be within the ar of risk for vicarious legal responsibility if the employee is whereby she is supposed to be, doing—more or less—what she is claimed to it is in doing, and the incident arose from the employee’s pursuit of the employer’s attention (again, more or less). That is, the employee is in ~ the region of risk if the maid is in the place within which, if the understand were come send the end a find party to uncover a missing employee, it would certainly be reasonable come look. See section 4, Cockrell v. Pearl flow Valley Water it is provided Dist.

Special situations of Vicarious Liability

Vicarious liability is not minimal to injury caused in the course of an company relationship. The may likewise be enforced in other areas, consisting of torts of household members, and also other torts administer by state or regulation. We will study each in turn.

Use that Automobiles

A problem generally arises when an auto owner lends his car to a an individual friend, someone that is not an agent, and the borrower injures a third person. Is the owner liable? In many states, the owner is no liable; in various other states, however, two viewpoints impose legal responsibility on the owner.

The first approach is legislative: owner’s consent statutesDoctrine under which the owner the an automobile is liable because that damages caused by the driver who has permission to usage the car. Make the owner liable once the auto is being driven with his consent or knowledge. The 2nd approach to placing liability on the owner is judicial and also known together the family members purpose doctrineA doctrine under i beg your pardon an owner of an car is liable for damages to others occurs while members of his family are driving the vehicle, under the theory that the car is owned for household purposes.. Under this doctrine, a household member that negligently injures someone with the auto subjects the owner to liability if the family member was furthering household purposes. These room loosely characterized to encompass virtually every usage to i m sorry a child, because that example, can put a car. In a Georgia case, Dixon v. Phillips, the father permitted his minor child to journey the vehicle but expressly forbade that from letting anyone else execute so.Dixon v. Phillips, 217 S.E.2d 331 (Ga. 1975). Nevertheless, the son gave the wheel to a friend and also a collision developed while both to be in the car. The court hosted the dad liable due to the fact that he do the car available for the pleasure and also convenience of his son and other household members.

Torts of family members Members

At typical law, the husband to be liable for the torts the his wife, not because she was thought about an agent but since she was considered to be an extension of him. “Husband and wife were only one human in law,”O.W. Holmes, Agency, 4 Harvard legislation Rev. 353 (1890–91). Says Holmes, and any plot of the wife was an alleged to have been done at the husband’s direction (to i m sorry Mr. Dickens’s Mr. Bumble responded, in the memorable line, “If the legislation supposes that, the legislation is a ass—a idiot”Charles Dickens, Oliver Twist, (London: 1838), chap 51.). This ancient view has been abrogated by state or by court ruling in all the states, so that currently a mam is specifically responsible for her very own torts unless she in fact serves as her husband’s agent.

Unlike wives, children are not presumed at common law to be agents or expansions of the father so that normally parents room not vicariously responsible for your children’s torts. However, they have the right to be held liable for failing come control kids known to it is in dangerous.

Most states have statutorily adjusted the common-law rule, making parental responsible for willful or malicious tortious plot of their youngsters whether or not they are well-known to it is in mischief-makers. Hence the Illinois Parental obligation Law provides the following: “The parental or legal guardian of an unemancipated young who lives with such parental or legit guardian is liable because that actual loss for the willful or malicious plot of together minor which cause injury to a human or property.”Ill. Rev. Stat. (2005), chapter 70, i 51. Http://law.justia.com/illinois/codes/2005/chapter57/2045.html. Several various other states impose a monetary limit on together liability.

Other Torts governed by state or Regulation

There room certain types of conduct that statutes or regulation attempt to control by placing the burden of liability on those presumably in a position to protect against the undesirable conduct. An instance is the “Dramshop Act,” i beg your pardon in many states subjects the owner that a bar to legal responsibility if the bar continues to offer an intoxicated patron who later on is connected in an accident when intoxicated. Another example involves the revenue of adulterated or short-weight foodstuffs: the employer of one that sells such might be liable, even if the employer did not recognize of the sales.

Principal’s Criminal Liability

As a general proposition, a major will no be hosted liable because that an agent’s innocuous criminal action if the crimes are those requiring certain intent. Hence a department save proprietor who tells his chief buyer to obtain the “best deal possible” on following fall’s fashions is not liable if the the person who lives steals garments from the manufacturer. A principal will, however, be responsible if the primary directed, approved, or participated in the crime. Instances here involve, because that example, a corporate principal’s liability for agents’ task in antitrust violations—price-fixing is one together violation.

There is a narrow exemption to the vast policy of immunity. Courts have actually ruled that under specific regulatory statutes and also regulations, one agent’s criminality may be imputed come the principal, simply as civil liability is imputed under Dramshop Acts. These incorporate pure food and also drug acts, speeding ordinances, building regulations, kid labor rules, and minimum wage and maximum hour legislation. Misdemeanor criminal liability may be applied upon corporations and individual employees for the sale or delivery of adulterated food in interstate commerce, notwithstanding the fact that the defendant may have had actually no actual understanding that the food to be adulterated at the moment the sale or distribution was made.

Key Takeaway

The principal will it is in liable because that the employee’s torts in 2 circumstances: first, if the major was straight responsible, as in hiring a person the principal knew or should have known to be incompetent or dangerous; second, if the employee committed the tort in the scope of business for the principal. This is the master-servant doctrine or respondeat superior. That imposes vicarious liability on the employer: the grasp (employer) will certainly be liable if the employee remained in the region of task creating a threat for the employer (“zone the risk” test), the is—generally—if the employee was whereby he was supposed to be, once he was claimed to it is in there, and also the incident arose out the the employee’s attention (however perverted) in cultivating the employer’s business.

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Special cases of vicarious liability arise in several circumstances. Because that example, the owner that an auto may be liable for torts cursed by one who borrows it, or if it is—even if indirectly—used for family members purposes. Parents are, by statute in plenty of states, responsible for your children’s torts. An in similar way by statute, the sellers and also employers of sellers that alcohol or adulterated or short-weight foods may it is in liable. The employer of one that commits a crime is not normally liable unless the employer placed the employee approximately the crime or knew that a crime to be being committed. But some prophylactic law impose legal responsibility on the employer because that the employee’s crime—even if the employee had actually no intention to commit it—as a method to force the employee to stop such actions.


What is the difference in between direct and also vicarious employer tort liability? What is expected by the “zone the risk” test? Under what situations will an employer be liable for intentional torts that the employee? as soon as will the employee be liable for an employee’s criminal acts?