Vicarious Liability

Vicarious Liability in the United States

Vicarious Liability Meaning

Vicarious liability is that liability which is imputed to a person who should presumably be in position to control the actions of another person where that other person is a tort-feasor. Thus parents are responsible for the torts of their children. Guardians are responsible for the torts of their charges. Employers are responsible for the torts of their employees committed in the scope of the duties of the employee. Products liability is not an example of vicarious liability but rather of strict liability, though the common aspect of capacity to control tortious conduct exists there as well.

In Tort Law (Excuses)

There are many excuses (defenses) to claims of negligence, including assumption of risk and comparative negligence. In those few jurisdictions where contributory negligence has not been modified to comparative negligence, plaintiffs whose negligence contributes to their own injuries will be barred from any recovery.

Liability for negligent acts does not always end with the one who was negligent. Under certain circumstances, the liability is imputed to others. For example, an employer is responsible for the negligence of his employees if they were acting in the scope of employment. This rule of vicarious liability is often called respondeat superior, meaning that the higher authority must respond to claims brought against one of its agents. Respondeat superior is not limited to the employment relationship but extends to a number of other agency relationships as well.

Legislatures in many states have enacted laws that make people vicariously liable for acts of certain people with whom they have a relationship, though not necessarily one of agency. It is common, for example, for the owner of an automobile to be liable for the negligence of one to whom the owner lends the car. So-called dram shop statutes place liability on bar and tavern owners and others who serve too much alcohol to one who, in an intoxicated state, later causes injury to others. In these situations, although the injurious act of the drinker stemmed from negligence, the one whom the law holds vicariously liable (the bartender) is not himself necessarily negligent—the law is holding him strictly liable, and to this concept we now turn. (1)

Provocative Act Doctrine

by Thomas L. Libby

In November 2009, the California Supreme Court narrowed the controversial “provocative act doctrine,” one among a handful of vicarious liability theories available to prosecutors. In a case involving three men who tried to rob the owner of a Los Angeles hair salon (People v. Concha, 47 Cal. 4th 653 (2009)), the intended victim stabbed one of his attackers to death in self-defense with a pocketknife. The two surviving robbers were eventually convicted of first-degree murder under the doctrine, which holds that accomplices can be held responsible for an associate’s murder at the hands of a third party.

The doctrine came to prominence after a 1965 state Supreme Court decision affirmed the first-degree murder conviction of a robbery suspect whose accomplice was killed by an Alhambra police officer attempting to avert the crime (People v. Gilbert, 63 Cal. 2d 690 (1965)). The court affirmed the doctrine more than 40 years later in Concha, but also limited its reach in remanding the case to confirm that provocative act doctrine cases require defendants to have “acted willfully, deliberately and with premeditation during the attempted murder.” This March, an appeals court upheld that finding (People v. Concha, 182 Cal. App. 4th 1072 (2010)).

Though still rarely used, the doctrine has been raised in recent California cases involving gangs in Gilroy, a robbery in Riverside, and – in a racially charged Lake County case – medical marijuana theft.

Vicarious Liability under Doctrine of Ostensible or Apparent Agency

This section discusses generally the subject of Vicarious Liability under Doctrine of Ostensible or Apparent Agency, how to determine the facts essential to Vicarious Liability under Doctrine of Ostensible or Apparent Agency, and, to some extent, how to prove it in litigation and defense. Related topics are also addressed.

Resources

Notes

  1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.

See Also

  • Accomplices
  • Actus Reus
  • Conspiracy
  • Corporate Criminal Responsibility
  • Strict Liability
  • Respondeat superior
  • Master and Servant
  • Scope of Employment
  • Tort Law.

Further Reading (Books)

American Law Institute. Model Penal Code and Commentaries. Philadelphia: ALI, 1985.

Dressler, Joshua. Understanding Criminal Law, 2d. ed. New York: Matthew Bender, 1995.

Cases and Materials on Criminal Law, 2d ed. St. Paul, Minn.: West Group, 1999.

Eichelberger, Eunice A. “Criminal Responsibility of Parent for Act of Child.” American Law Reports, 4th Series 12 (1981): 673_700.

Fletcher, George P. Rethinking Criminal Law. Boston: Little Brown, 1978.

Hall, Jerome. General Principles of Criminal Law. Indianapolis: Bobbs-Merrill, 1947.

Husak, Douglas N. Philosophy of Criminal Law. Totowa, N.J.: Rowman & Littlefield, 1987.

Ihrie, A. Dale, III. “Comment, Parental Delinquency: Should Parents Be Criminally Liable for Failing to Supervise Their Children?” University of Detroit Mercy Law Review 74 (1996): 93_112.

LaFave, Wayne R., and Scott, Austin W., Jr. Criminal Law, 2d ed. St. Paul, Minn.: West Publishing Co., 1986.

Michaels, Alan C. “Constitutional Innocence.” Harvard Law Review 112 (February 1999): 828_902.

Packer, Herbert L. The Limits of the Criminal Sanction. Stanford, Calif.: Stanford University Press, 1968.

Robinson, Paul H. Criminal Law. New York: Aspen Law and Business, 1997.

Sayre, Francis Bowes. “Criminal Responsibility for the Acts of Another.” Harvard Law Review 43 (March 1930): 689_723.

Williams, Glanville L. Criminal Law: The General Part. London: Stevens and Sons, 1953.

Further Reading (Articles)

Licensed to Kill: A Defense of Vicarious Liability under the Endangered Species Act, Duke Law Journal; April 1, 2014; Damiano, Devon Lea

Vicarious Liability Of A Corporate Employer For Punitive Damages., Mondaq Business Briefing; February 16, 2012

Automobile Leasing and the Vicarious Liability of Lessors, Fordham Urban Law Journal; May 1, 2005; Koevary, Daniel J.

Accountability of Public Authorities through Contextualized Determinations of Vicarious Liability and Non-Delegable Duties, University of New Brunswick Law Journal; November 1, 2007; Adjin-Tettey, Elizabeth

Motor Vehicle Leasing and Vicarious Liability-An Update for Lessors, Equipment Leasing & Finance; May 1, 2006; Anonymous

Vicarious liability ban smoothes road for lease ABS.(asset backed securities), Asset Securitization Report; August 15, 2005; Catton, Grant

Corporate Risk And Insurance Update – July 2006.(vicarious liability), Mondaq Business Briefing; August 3, 2006

Car rental companies: trying to slam the door on vicarious liability., Trial; January 1, 2000; Loiacono, Kristin;

Vicarious Liability Means Secondary Coverage, Irrespective of General Rules Governing Primary and Excess Policies, Mondaq Business Briefing; March 21, 2013; Horst, Jason

Vicarious Liability Under The UAE Companies Law., Mondaq Business Briefing; March 29, 2010

Nurses’ personal liability vs. employer’s vicarious liability.(Ethics, Law, and Policy), MedSurg Nursing; January 1, 2012; Anselmi, Katherine Kaby

Living Vicariously: Vicarious Liability and First- and Third-Party Protection, American Agent & Broker; August 1, 2013; Amrhein, Chris

Motor Vehicle Leasing and Vicarious Liability, Equipment Leasing & Finance; September 1, 2004; Anonymous

The Fifth Circuit Weighs in on Vicarious Liability under the Anti-Kickback Act, Mondaq Business Briefing; October 28, 2013; Mayer, Kirsten

The State’s Vicarious Liability for the Actions of the City, Harvard Law Review; February 1, 2011

Vicarious liability for acts of borrowed servants, FDCC Quarterly; January 1, 2003; Ingram, John Dwight

Employer’s Textbook Response Avoids Vicarious Liability for Sexual Harassment, Mondaq Business Briefing; October 14, 2012

Focus on Vicarious Liability: Local Authorities and Foster Carers, Mondaq Business Briefing; September 18, 2012

Beyond “Unlimiting” Shareholder Liability: Vicarious Tort Liability for Corporate Officers, Vanderbilt Law Review; March 1, 2004; Glynn, Timothy P.

Vicarious Liability – When Is an Employer Responsible?, Mondaq Business Briefing; June 17, 2012


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