Case Analysis of Vicarious Liability: Is the Employer at Fault?

Case Analysis of Vicarious Liability: Is the Employer at Fault?

Abstract

Significant developments in law relating to vicarious liability have taken precedence since 1999 and has become an appropriate juncture to shine a light on the area of law which is relevant to both employment law and the law of tort (Lockwood, 2011). An employee can be liable for his or her own torts, but a principle may also be liable for harm an agent has caused to a third party under the doctrine of respondeat superior (Miller et al, 2015). This paper will provide a case analysis and discuss factors to determine if the employer is at fault based on the employee’s unintentional actions.

Hypothetical Case Analysis

Hypothetically, the existence of vicarious liability can be justified on both legal/policy grounds and organizational grounds (Lockwood, 2011). The legal reasons are justified due to the fact that the wrongful act of the employee are so closely related to their duties that they can properly and fairly regarded as being within the course of employment (Lockwood, 2011).

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The employee was wrong for traveling above the legal speed limit and caused a near fatal accident against the pedestrian. Since the employee operated from a company vehicle, the company or employer could be considered at fault. From a legal perspective regarding vicarious liability, it is fairly summarized that the employer may be held liable for the tortious conduct of an employee as long as that conduct was committed in the course and within the scope of the employee’s employment, but not if the act was outside the employee’s authority or committed for the employee’s own personal purposes (Smiley, 2018).

According to Miller (2015), the key to determining whether the employer is liable for the torts committed within the scope of employment is based on the following:

•                  Whether the act was authorized by the employer
•                  The time, place, and purpose of the act
•                  Whether the act was commonly performed by employees on behalf of the employer
•                  The extent to which the employer’s interest was advanced by the act
•                  The extent which the private interests of the employee were involved.
•                  Whether the employer furnished the means or instrumentality (For example, truck or machine) by which the injury was inflicted.

If these three elements can be proved in a court case by proving that the employee’s harmful act was intentional or negligent, the plaintiff can recover against the employer, either in addition to, or instead of, the employee who committed harm, otherwise, the employer is not vicariously liable (Sevier, 2017).

Traditionally, for the employer to be vicariously liable, the tort must be committed in the course of the employee’s employment. It can be argued that it is unfair that the employer can do little to prevent vicarious liability from arising-the employer may be liable even though the employee has done an act which could not have been anticipated and guarded against by the employer (Leung, 2004).

On the other hand, it can also be argued that extending the scope of vicarious liability does serve one purpose as it is socially desirable to enable persons injured in traffic accidents to be reasonably certain the someone will be in position to pay for compensation (Leung, 2004).

Although driver was driving at high rate of speed, which is deemed to be negligent on the employee’s part. Patrick Essiminy, an attorney, argues that an employee who is traveling for the employer is deemed to be at work for the employee is an extension of the workplace and therefore the employer is responsible to make sure that anything that is done on the workplace, including third parties who enter the workplace is done safely (McCallum, 2006).

Generally, a business contracts with an independent contractor is immune from vicarious liability for damages to a third party for negligent acts of the contractor committed during the performance of the agreement (Mellow et al, 2016). Historically, the work it be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing against it therefore, the distinction between the employee and independent contractor can become a critical liability issue to the hiring entity (Mellow et al, 2016).

The employer can also be directly liable for the negligence of its employees, meaning that the negligent act or omission of the employer was the cause of, allowed or led to the negligence of the employee, thereby causing injury to the claimant (Thornton, 2010). These claims can also allegations that proper policies and procedures were not implemented or enforced and that those failures caused the injury at issue (Thornton, 2010).

Evidence suggests that the employer will be considered at-fault. Making this decision will possibly allow the employer to narrow its liability by admitting to respondeat superior liability (Burns,2011). Once the employer admits to that is liable for the tortious conduct of its employee, claims of negligent entrustment, hiring and retention are no longer available to the plaintiff or victim (Burns, 2011). In reality, evidence concludes that the employee’s speeding, inflicted negligence, in connection to the employee’s scope of employment. 

In conclusion, the developments that have taken place in the last decade in the law of vicarious liability has important implications for employers (Lockwood,2011). It’s important for organizations to be aware that if it engages workers and controls what they do, it might incur vicarious liability for their actions. Newly developed laws regarding employer liability might encourage employers to recognize the responsibility of the organization and its management in eliminating undesirable and unacceptable behavior and risk through policy and procedure that address errant risks.

Reference:

• Burns, J. J. (2011). RESPONDEAT SUPERIOR AS AN AFFIRMATIVE DEFENSE: HOW EMPLOYERS IMMUNIZE THEMSELVES FROM DIRECT NEGLIGENCE CLAIMS. Michigan Law Review, 109(4), 657-681. Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/848413896?accountid=167104
• Elkins, D. (2015, May 12). Employer has no respondeat superior liability. Virginia Lawyers Weekly Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/1681223484?accountid=167104.
• Halbert, T. and Elain I. (2010). Law and ethics in the business environment. 8th ed. Mason: Cengage.
• Leung, S. (2004). A new test for vicarious liability. China Staff, 10(11), 34-37. Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/191625512?accountid=167104
• Lockwood, G. (2011). The widening of vicarious liability: Implications for employers. International Journal of Law and Management, 53(2), 149-164. doi:http://dx.doi.org/10.1108/17542431111119414
• McCallum, C. (2006, Apr). ALL TRIPPED UP. OH & S Canada, 22, 24-31. Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/224612827?accountid=167104
• Mellow, M. A., Niedbalski, T., & Wehmer, J. S. (2016). Employee or independent contractor? how the effects of classifications impact employer liability. Defense Counsel Journal, 83(1), 45-67. Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/1807491957?accountid=167104
• Miller, R. and Jentz, G. (2015). Fundamentals of business law. Summarized cases. 10th ed. Mason: Cengage Learning.
• Smiley, A. (2018, Apr 12). Vicarious liability/Respondeat superior – course and scope of employment can be circumstantial and subject to interpretation. Michigan Lawyers Weekly Retrieved from https://prx-herzing.lirn.net/login?url=https://search.proquest.com/docview/2026274069?accountid=167104
• Thornton, R. (2010). Responsibility for the Act of Others. Baylor University Medical Center Proceedings. US National Library of Medicine National Institutes of Health. Retrieved on January 18, 2019. Retrieved on https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2900989/