Torts II

Vicarious Liability

Vicarious liability, also known as imputed negligence, is the imposition of liability on one person for the actionable conduct of another, based solely on the relationship between the two persons.

Respondeat Superior

Respondeat superior is when an employer, master, or principal is liable for its employee, servant, or agent.

Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the scope of their employment. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.

Scope of Employment

Acts necessary to the comfort, convenience, health, and welfare of the employee do not take the employee outside the scope of employment.

Going-and-Coming Rule

The going-and-coming rule says that commute to and from work is outside the scope of one's employment.

The going-and-coming rule does not apply when an employee endangers others with a risk arising from or related to work. This is determined by if it "was a generally foreseeable consequence of the activity." The conduct is foreseeable if it is not so startling or unusual that it would seem unfair to include the loss as part of the employer's cost of doing business.

Slight Deviation Rule

Approximately half of the states follow the slight deviation rule, which says that a detour, or a slight deviation, is sufficiently related to the scope of employment, but a frolic, a substantial deviation, is not.

Slight Deviation

A slight deviation for the comfort, convenience, health, and welfare of the employee while at work is not outside the scope of employment if the conduct is not a substantial deviation from the duties of employment.

Respondeat superior generally does not apply for intentional torts.

  • Only when it is reasonably connected with the employment and so within its scope of employment.
    • The majority of jurisdictions and the Restatement do not allow punitive damages unless the principal authorized or ratified the acts, was reckless in employing or retaining the agent, or the agent was employed in a managerial capacity and was acting in the scope of employment.
Independent Contractors

Employers are not vicariously responsible for the tortious acts of independent contractors.

A person is a contractor if he has the right to control the physical details of the work.


  • Where there is a non-delegable duty, the person upon whom the duty is imposed is responsible for an independent contractor's actions in negligently performing that duty.
  • Apparent Authority

    One who represents that another party is his servant or agent may be held vicariously liable for the latter's negligent acts to the extent of that representation.

  • When the contractor is negligent in performing an abnormally dangerous activity, the person who hired him is vicariously liable.
  • One who contracts for an illegal activity is vicariously liable for any damage done by such an independent contractor.
Joint Venture

The majority rule is that vicarious liability may be imposed upon those engaged in a joint venture or enterprise.

The Restatement (Second) of Torts § 491 comment c defines the four elements of a joint enterprise as:

  1. an agreement, express or implied, among the members of the group;
  2. a common purpose to be carried out by the group;
  3. a community of pecuniary interest in that purpose, among the members; and
  4. an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

A bailor is generally not liable for damage caused by the use of his property by a bailee.


  • Family Car Doctrine

    The family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family.

  • It is traditionally presumed that an owner controls the vehicle when he is a passenger therein, but many states have abandoned this presumption.
  • One is liable for his own negligence in loaning out his car.
Imputed Contributory Negligence

Some jurisdictions allow contributory negligence to be imputed to a party for the negligent acts of another.

The majority rejects imputed contributory negligence.

When retained, imputed contributory negligence generally follows the both-ways test.

Both-Ways Test

The both-ways test states that contributory negligence must be imputed if ordinary negligence would have been, and vice versa.

While largely rejected, contributory negligence is still generally imputed on an employer for the negligent actions of its employee.

When a claim is held to be derivative in nature, such as loss of consortium or wrongful death, the contributory negligence of an injured party will still be imputed to the plaintiff, barring or reducing his claims.