Personal Injury

When Are Employers Vicariously Liable for Personal Injury?

By Carole Bosch, Attorney
In many situations, an employer may be on the legal hook for the negligent conduct of an employee who causes an accident while "on the clock."

Vicarious liability is legal responsibility for personal injury that is imposed on one person based on the negligent or wrongful conduct of someone else. More simply put, vicarious liability is based on relationships. It most frequently arises in the employment context, where an employer may be held liable for the acts of its employees. It may also mean holding parents liable for the acts of their minor children, or it may apply when a vehicle owner loans their car to someone else.

In this article, we'll focus on vicarious liability in the employment context.

Elements of Vicarious Liability in the Workplace

To hold an employer vicariously liable for the harm that an employee causes, the injured party must demonstrate:

  • that an employment relationship exists, and
  • that the wrongful or negligent act was committed within the course and scope of the employment.

Let's take a closer look at these elements.

Demonstrating the Existence of an Employment Relationship

To hold an employer responsible for the wrongful acts of an employee, the injured party must first prove that the at-fault party was actually an employee. Often times, the employer will not dispute the existence of an employment relationship. But, where the legal status of the at-fault-party is at issue, it falls on the injured party to show that the employer controlled the means and manner by which the employee’s work was performed.

For instance, are physicians "employees" of the hospital where they practice medicine? The relationship between a physician and a hospital is often complex, and it be a key issue when it comes to liability for medical malpractice. More often than not, physicians are independent contractors, not employees of the hospital where they practice. But, physicians treating patients at a hospital must follow strict hospital requirements. Whether a court holds a hospital vicariously liable for the medical malpractice of a physician often depends on how the hospital held out the physician -- as an employee or as an independent contractor. (More: Can I Sue the Hospital for Medical Malpractice?)

On a similar note, when Michael Jackson’s family sued the concert promoter who had hired the physician responsible for injecting the singer with a fatal dose of propofol, the court found that the contract between the concert promoter and the physician did not permit the promoter to direct how the physician was to perform his work. The physician was independently licensed. Also, Michael Jackson, not the promoter, was paying the physician. (Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1179.)

Demonstrating that the Wrongful Act Occurred Within the Course and Scope of Employment

To demonstrate that an employee's wrongful acts were committed within the course and scope of employment, the injured party must prove that the wrongful act was either required by the employer or incidental to the employment. In the alternative, the injured party must show that the employer could reasonably foresee the misconduct.

To illustrate, if a salesperson driving a company car on the way to a sales call runs a red light and causes an accident, the employer will likely be held vicariously liable for the salesperson’s negligence. However, if the same salesperson, driving the same company car, causes an accident while running an errand on her day off, the employer will most likely not be liable. Personal activities typically do not fall within the scope of employment, even where they are conducted using a company car. Similarly, an employee commuting to and from work, or driving while on a lunch break, does not act within the course and scope of employment -- unless the employee is running a "special errand" benefiting the employer.

Whether the intentional acts of an employee fall within the course and scope of employment often depends on the facts. For instance, courts have generally been very reluctant to hold employers vicariously liable for employees assaulting third-parties, even if during work hours and on work premises. But, in a retail context, where altercations with customers can be frequent, some courts have suggested that an employee’s assault of a customer may be a foreseeable risk of employment. Learn more about Foreseeability and Negligence.

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