Vicarious Liability
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Vicarious Liability is liability of an employer which
derives from acts of persons working on behalf of the employer. When
an employee works on behalf of an employer, the law regards the acts of
the employee as the act of the employer, and as a consequence, when the
employee injures another while on the job, it seems only fair that the
employer should be responsible to the party harmed. For example, if a taxi
driver hits a pedestrian, we expect that the taxi company, and not just
the driver, will be responsible. Sometimes we explain this principal
by looking it from agency principles: the act of the agent
is the act of the principle. Sometimes we explain it from the standpoint
of simple justice. Would it be fair, after all, if the injured pedestrian
could not recover simply because the taxi driver lacked the resources to
compensate. Shouldn't we expect the cab company to carry insurance
to cover harm caused by its employees fault?
Direct Liability Compared When we speak of
vicarious liability, we are speaking of derivative liability of the employer
without direct fault of the employer. Keep in mind that the employer
is always liable to a victim if the employer has violated a direct duty
to that victim. If a food seller sells unsafe food products,
because of the act of an employee, the food seller will be liable because
food sellers have a duty to sell safe and healthy food under products liability
law: this is not vicarious liability--this is breach of a direct
duty to the injured party. Some duties under law are
duties of the employer in the first instance. An employer has
a duty not to discriminate in the hiring process. The fact that an
employee discriminated without permission of the employer does not exonerate
the employer, because the duty belongs to the employer.
Notice also that the victim may have a different kind of direct claim against the employer. For example, when the resident manager of an apartment building, the plaintiff will have a claim for assault against the manager, but may seek to bring a negligent hiring or supervision claim against the employer. Again, these negligence claims are not examples of vicarious liability. Vicarious liability is imputed fault.
Scope of Employment What are the limits of
vicarious liability. Suppose that an employee takes a detour from
his errands, perhaps to run home for a bit, should the employee be regarded
as on the job? Suppose that the employee breaks the employers explicit
instructions, and as a result causes injury. Over the years, advocates
for employers have sought to argue that when the employee goes beyond the
scope of employment, that the employee is no longer acting on behalf
of the employer, and thus liability should not follow. When
the plaintiff has been injured by a negligent act of an employee, liability
generally follows automatically: a claim that the employee acted
outside the scope of employment will rarely be successful.
Liability for Intentional Acts What if an employee
commits an intentional act? Suppose a sales person strikes a customer
during an argument? Suppose a doctor sexually abuses or exploits
a patient? Suppose a teacher engages in sexual relations with a minor
student? Suppose a strikes a student for disciplinary reasons.
Suppose a nurse assaults a vulnerable adult in a nursing home?
Originally, tort law denied recovery in most of these cases, unless it
could be shown that the intentional act was in the scope of employment,
in the sense that the employee was attempting directly to advance the business
of the employer with the intentional act.
But in recent years, the courts in many states have departed from the original definition of scope of employment. Minnesota is such a state. In Lange v. National Biscuit Company 211 N.W.2d 783 (Minn. Sup. Ct. 1973) the court found that a jury could find that a sales person who struck a customer during an argument was acting within the scope of employment. In Marston v. Minneapolis Clinic of Psychiatry and Neurology 329 N.W.2d 306 (Minn. Sup. Ct. 1983) the Court affirmed a judgment against a clinic when a psychiatric therapist engaged a patient in consensual sex. Sometimes the basis for liability in these cases is the fact that the employer places the victim under the power and control of the employee-perpetrator. Sometimes the basis for liability rests on the fact that misconduct of this kind is a "known hazard" of the particular kind of employment. Minnesota follows a flexible multi-factored approach to vicarious liability for intentional acts.
Over the last several years, courts have been struggling with how to handle sexual assaults by employees. Niece v. Elmview Group Home, 929 P.2d 420 (Wash. 1997) allowed a plaintiff to proceed with a claim of abuse in a group home, leaving the issue of vicarious liability to the jury. Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska, 1990) adopted a test similar to that found in Minnesota. Stropes v. Heritage House Children’s Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989) approached the issue differently when confronted with abuse in a children’s center which cared for mentally retarded children. The court found that the center assumed a nondelegable duty to provide protection and care for residents. The center was in the business of child protection, in essence, and was responsible if it failed to meet is responsibility.
However, in P.L v. Aubert, 545 N.W.2d 666, the Minnesota Supreme Court reversed the Court of Appeals in a case where a female high teacher had intimate sexual contact with a male student. The court found that there had been “no evidence that such relationships between teacher and student are a ‘well known hazard’ and thus ....foreseeable.” 545 N.W.2d at 668. The court continued:
- While it is true that teachers have power and authority over students, no expert testimony or affidavits were presented regarding the potential for abuse of such power in these situations; thus there can be no implied foreseeablity.” This sentence seems to imply that the Aubert problem can be overcome by affidavits or other evidence establishing that the plaintiff was harmed by a “well known hazard...” But then the Court goes on to quote the Lange case: “The Master is liable for any act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort....” “Here,” the Aubert court states, “ the sexual contact by the teacher toward the student could not be considered an ‘indivisible’ act directly related to her teaching duties. Thus liability of the master cannot be imputed, even though the acts were committed within work related time and place.” 545 N.W.2d at 668.
Contrast the P.L. v. Aubert decision with the Court's later decision in Fahrendorff v ITASKIN House (August 5, 1999). Fahrendorff had been sexually assaulted while in the sole night-time custody of a male group home parent. The District Court and Court of Appeals believed that the Aubert decision led inevitably to the conclusion that ITASKIN House could not be vicariously liable for the assault. But the Supreme Court reversed, and reaffirmed its Marston holding. There was testimony establishing that sexual assaults of vulnerable children constituted a well-known hazard. The group home parent gained power over the child as a direct result of his position, and he used that power to commit the assault. Consequently, the victim's case against the employer could go to the jury.
Civil Rights Statutes Employer liability
is somewhat differently analyzed in the context of civil rights statutes.
Here, the focus is more properly on whether the employer has, through its
employee, committed an act which the statute was designed to protect against.
We are not dealing primarily with vicarious liability, then, but a question
of statutory interpretation. For this reason, the issue of employer
liability for civil rights violations committed by employees belongs in
another panel.
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