Vicarious liability

::"This article is about vicarious liability in private litigation; for vicarious liability in criminal law, see Vicarious liability (criminal)."Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – "respondeat superior" – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability.

Employers' liability

Employers are vicariously liable, under the "respondeat superior" doctrine, for negligent acts or omissions by their employees in the course of employment. [ [http://www.nolo.com/article.cfm/ObjectID/315FE0E9-D6B6-479B-A8005EED919D3D5F/catID/5DF453C7-2180-4035-AD75304A83BC6543/111/259/183/ART/ Nolo Law web site] ] For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode, though an improper mode, of performing it. Courts sometime distinguish between an employee's "detour" or "frolic". For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability. Neither, generally, will an employer be held liable for assault or battery committed by employees, unless the use of force was part of their employment (e.g. police officers, nightclub bouncers), or they were in a field likely to create friction with persons they encountered (e.g. car re-possessors). However, the employer of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil.

Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts or omissions of another.

Principals' liability

The owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been loaned, as if the owner was a principal and the driver his or her agent, "if" the driver is using the car primarily for the purpose of performing a task for the owner. Courts have been reluctant to extend this liability to the owners of other kinds of chattel. For example, the owner of a plane will not be vicariously liable for the actions of a pilot to whom he or she has lent it to perform the owner's purpose.

One example is in the case of a bank, finance company or other lienholder performing a repossession of an automobile from the registered owner for non-payment, the lienholder has a non-delegatable duty not to cause a breach of the peace in performing the repossession, or it will be liable for damages even if the repossession is performed by an agent. This requirement means that whether a repossession is performed by the lienholder or by an agent, the repossessor must not cause a breach of the peace or the lienholder will be held responsible. This requirement not to breach the peace is held upon the lienholder even if the breach is caused by, say, the debtor objecting to the repossession or resists the repossession. In the court case of "MBank El Paso v. Sanchez", 836 S.W.2d 151, where a hired repossessor towed away a car even after the registered owner locked herself in it, the court decided that this was an unlawful breach of the peace and declared the repossession invalid. The debtor was also awarded $1,200,000 in damages from the bank. In the United States, vicarious liability for automobiles has since been outlawed with respect to car leasing and rental in all 50 states.

Parental liability

In the United States, the question of parental responsibility generally and the issue of parental vicarious liability for the torts of their children is evolving. What is clear is that parents can be held liable for their own negligent acts, such as failure to supervise a child, or failure to keep a dangerous instrument such as a handgun outside the reach of their children.

The liability of corporations in tort

In English law, a corporation can only act through its employees and agents so it is necessary to decide in which circumstances the law of agency or vicarious liability will apply to hold the corporation liable in tort for the frauds of its directors or senior officers. If liability for the particular tort requires a state of mind, then to be liable, the director or senior officer must have that state of mind and it must be attributed to the company. In "Meridian Global Funds Management Asia Limited v Securities Commission" [1995] 2 AC 500, two employees of the company, acting within the scope of their authority but unknown to the directors, used company funds to acquire some shares. The question was whether the company knew, or ought to have known that it had acquired those shares. The Privy Council held that it did. Whether by virtue of their actual or ostensible authority as agents acting within their authority (see "Lloyd v Grace, Smith & Co." [1912] AC 716) or as employees acting in the course of their employment (see "Armagas Limited v Mundogas S.A." [1986] 1 AC 717), their acts and omissions and their knowledge could be attributed to the company, and this could give rise to liability as joint tortfeasors where the directors have assumed responsibility on their own behalf and not just on behalf of the company.

So if a director or officer is expressly authorised to make representations of a particular class on behalf of the company, and fraudulently makes a representation of that class to a Third Party causing loss, the company will be liable even though the particular representation was an improper way of doing what he was authorised to do. The extent of authority is a question of fact and is significantly more than the fact of an employment which gave the employee the opportunity to carry out the fraud. In "Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited" [1971] 2 QB 711, a company secretary fraudulently hired cars for his own use without the knowledge of the managing director. A company secretary routinely enters into contracts in the company's name and has administrative responsibilities that would give apparent authority to hire cars. Hence, the company was liable.

Criticisms of vicarious liability

A major foundation of tort law is that a person who deviates from the conduct of a reasonably prudent person does so at his peril. That is, we consider it fair to hold John Doe responsible for damage he causes if he behaves in a negligent, reckless, or intentionally wrongful manner. The damage was his fault; he is culpable. However, respondeat superior often, if not usually, makes an entirely innocent person answer for the deviations of others. Why? Modern justifications for the rule usually center on the employer's ability to satisfy a judgment because of deep pockets or liability insurance. The flimsiness of such a justification should be apparent. We do not, generally, base findings of liability on the defendant's ability to satisfy a judgment. In fact, the rules of evidence prohibit the jury from considering the defendant's wealth or insurance. So where did this rule come from? Oliver Wendell Holmes, in his book "The Common Law", traces it back to the Roman Republic. Back then, if a slave committed a tort against a free person, that person could demand that the owner surrender the slave. The fault attached to the slave. He was the one who had to answer, sometimes even with his life (vengeance was very important back then). Later developments in the law allowed the owner to retain the slave and pay money damages instead. The payment of damages was an exception carved out of the general surrender rule to benefit the slave owner; he got to keep the slave. Clearly, in subsequent generations surrendering the body faded from the law, but the payment of damages did not. The real aim of respondeat superior is a policy aim; we want the big guy to compensate the little guy; and we have shoe-horned that policy into a rule that originally had no such aim.

The principle of vicarious liability can also be bypassed with a legal instrument known as Employers Indemnity. When an employer is successfully sued, they have the option of suing the tortfeasor for an indemnity to recover the damages back. This principle is greatly criticised when used in the case of " [http://www.safetyphoto.co.uk/subsite/case%20i%20j%20k%20l/lister_v_romford_ice__cold_storage.htm Lister v Romford Ice Cold Storage] "

References

* Department of Trade & Industry. "Company Law Review: Attribution of Liability" [http://www.dti.gov.uk/cld/glick.pdf]

External links

* [http://legalwikipro.com/wiki/index.php?title=Respondeat_Superior_(OK) Article on Respondeat Superior (Oklahoma) at Legalwikpro.com.]