VIII. Vicarious Liability | Shailin Thomas | October 22, 2013


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VIII. Vicarious Liability

Original Creator: Jonathan Zittrain Current Version: Shailin Thomas Show/Hide

Sometimes third parties can be called to account for others’ actions, as if they were the direct wrongdoers. For example, a court might hold a company responsible for the negligence of its employees — an employee’s wrong becomes the company’s wrong. This extension of liability can be important to a plaintiff who might otherwise be unable to collect damages from the shallower pockets of the original wrongdoer.

This concept is often referred to as “vicarious liability”. A common form of vicarious liability is that of an employer for their employee— “respondeat superior”. Under the doctrine of respondeat superior, an employer is liable for any actions that fall within an employee’s scope of employment. In other words, McDonald’s might pay for an employee who carelessly spills hot coffee on a customer, but not when he or she goes home and spills hot coffee on a family member.

However, in many situations it is not so clear cut if the employee’s torts occur within his or her employment. Should a company pay for an employee’s car accident that occurs during a lunch break, away from work? Should a club owner pay for the injuries its bartender inflicts upon a customer who refuses to pay?

To answer these questions we consider cases that illustrate both the fundamentals of and exceptions to vicarious liability.


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    1. 1.1 Show/Hide More Bussard v. Minimed, Inc.--"The Noxious Office Fumes"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      Are there cases where a commute does not fall under the goings-and-comings rule?
      Defendant hired a pest control company to spray pesticide overnight at the defendant’s facility. Fumes from the pesticide caused employees to feel ill the next day. An employee (Hernandez) requested, and was granted, permission to go home due to not feeling well. While returning route, she rear ended the plaintiff. Hernandez told the police officer who responded to the accident scene that she had felt dizzy and lightheaded before the accident.
    2. 1.2 Show/Hide More Miller v. Reiman Wuerth Co.--"The Bank Errand Case"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      Can personal errands done during business hours fall under the scope of employment?
      A company employed a carpenter who was involved in a car accident with the plaintiff. At the time of the accident, the carpenter was returning back to a job site after running a personal errand. Earlier, a supervisor of the company had granted the carpenter permission to leave. The errand related solely to the carpenter’s finances and personal relationships.
    3. 1.3 Show/Hide More Christensen v. Swenson--"The Lunch Break Case"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      Is an employee acting within the scope of her employment during her lunch break?
      Plaintiff sued a security company and its employee (Swenson) for an automobile accident caused by the employee. The accident occurred while Swenson was on a break permitted by company policy. Swenson was returning from a lunch run to the only restaurant accessible within her break time. Besides a nearby vending machine or a bag lunch, there was no other source of food she could reach during her eight-hour shift without violating break policies.
    4. 1.4 Show/Hide More Kuehn v. Inter-city Freight--"The Road Rage Case"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      How should courts distinguish between employee's personal outbursts and their work on behalf of the company?
      A truck driver (White) for the defendant company drove in a manner which put the plaintiff at risk of a crash. Plaintiff then attempted to catch up to White’s truck and signaled him to pull over. Once the plaintiff and White drove off the road and stopped their vehicles, White approached the plaintiff with a pipe and beat him with it.
    5. 1.5 Show/Hide More Sage Club v. Hunt--"The Violent Bartender"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      Can certain jobs or duties create a scope of employment that encompasses intentional torts?
      The defendant club employed a bartender (Thyfault) who had a physical altercation with the plaintiff. The altercation arose out of plaintiff’s insinuation that Thyfault had taken too much money for some drinks.
    6. 1.6 Show/Hide More Roessler v. Novak--"The 'Independent' Radiology Department"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      Can an entity be vicariously liable for actions notwithstanding the actual employment status of the wrongful actor?
      Plaintiff suffered from complications post-surgery. He sues the hospital in which the operation took place. However, the hospital insists that the operating doctor—the alleged wrongful actor—was not an employee or agent of the hospital, but an independent contractor.
    7. 1.7 Show/Hide More Shuck v. Means--"The Secret, Teenage Rental Car Driver"
      Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
      When a car renter allows a third-party to operate the vehicle (in violation of the rental agreement), can the rental agency be liable for the wrongful acts of the third-party?
      An eighteen year old got into a car accident with the plaintiff while driving a rental car leased out to his father. The teenager’s operation of the car was in violation of the rental agreement, and there was no evidence that the defendant rental agency was aware of this violation at the time.

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