Chapter 22

Vicarious Liability
§1. Respondeat Superior and Scope of Employment
Riviello v. Waldron
Facts: Edgewater Motels, Inc. v. Gatzke
 Joseph Waldron worked for the Pot Belly Pub, a bar operated by Raybele Tavern, Inc. Raybele hired Waldron to
prepare and serve food because he was popular and drew many patrons to the bar.
 Joseph Riviello (plaintiff) frequented the bar and knew Waldron. Waldron stopped to talk to Riviello and another
patron and showed them a pocketknife. Waldron left to deliver a food order and was flipping the knife in his hand
when he returned. Riviello turned suddenly, and the knife blade inadvertently hit his eye, blinding it.
 Riviello sued Waldron for negligence and Raybele for vicarious liability as his employer.
 The jury found Waldron negligent and awarded Riviello $200,000 in damages, and Waldron’s insurer paid
$25,000 in exchange for releasing Waldron.
 But the appellate court found Raybele not vicariously liable, reasoning that Waldron was acting outside the scope
of his employment when the accident happened.
 Riviello appealed.
Issue:
 Was employee’s negligence outside the scope of his employment?
Rule of Law/Analysis:
 Rule of Law:
o An employer is liable for torts an employee commits while acting within the scope of employment.
o If act was done while doing master's work, no matter how irregularly or with what disregard to the instruction,
master may be held liable. Vicarious liability may be found even where employee disregards employer's
instructions in committing tortious act
 Analysis:
o Originally the doctrine defined “scope of employment” narrowly as times when employers exercised close
control over employees. However, social policy broadened the doctrine’s scope because of the increasing
number of accidents caused by employees unlikely to be able to pay for injuries and employers’ ability to
insure against and spread those costs. The test New York courts apply is whether the employee was performing
the employer’s work, even if the employee disregarded instructions and did the work irregularly. The inquiry
depends on the specific facts and circumstances.
o According to torts treatises, guiding factors considered include time, place, and occasion; actual practices
of the employer and employee; whether the employee commonly performed the injurious act and used
regular methods; and whether the employer could reasonably anticipate the accident.
o In general, acts that are naturally incident to an employee’s job fall within the scope of employment. The
employer need not actually foresee the specific act that caused injury. The employer remains vicariously liable
even if the employee’s personal liability is released.
o Here, Waldron was going between the kitchen and bar when the accident occurred, a normal location for his
job. The parties’ past practices showed Waldron normally stopped and talked to patrons. Raybele hired
Waldron because his popularity drew patrons to the bar. Those facts suggest Raybele expected Waldron to
socialize and use his own judgment handling different patrons. Waldron not cooking or delivering food at the
moment the accident happened does not mean he was outside the scope of his job. Even the busiest employees
pause for breaks and talk with customers and show them things. Raybele could have foreseen that Waldron
might carelessly cause an injury while performing his job, whether he was holding a pocketknife, a steak knife,
or some other object. Flipping an object held in one’s hand is not necessarily unforeseeable, as employees have
human habits.
o Raybele may be held liable for Waldron’s act under the doctrine of respondeat superior.
o Finally, Raybele remains vicariously liable despite Waldron’s release.
Holding/Reasoning:
 Holding:
o The court accordingly reverses and remands for reconsideration.
  Reasoning:
o The court held that the employee’s negligence was not outside the scope of his employment bc the employer
need not have foreseen the precise act as long as the general type of conduct could have been reasonably
expected. Further, the customer was not barred from recovery of the money against the employer since the
condition was null.
 Time, place, commonly done, reasonably anticipated.
o New York courts hold general foreseeability is enough, like when an employee borrows a company vehicle for
personal use. Foreseeable intentional torts may also qualify, such as a bartender assaulting an unruly patron to
maintain order and protect the premises.

Fruit v. Schreiner
Facts: Alaska Supreme Court
 Fruit, a life insurance salesman was attending a company sales convention where he was required to be. On the
first night, Fruit and other sales agents went out for dinner and drinks to a restaurant and bar in Homer, about 5
miles from the convention. The next evening, Fruit went back to the Homer restaurant bc he thought out-of-state
sales agent would be there but left when he found no one there. At 2am while on his way back to the convention,
he skidded and struck Schreiner, whose legs were crushed.
 Schreiner sued Fruit and his employer.
 A jury found both liable- the employer was found liable bc Fruit’s negligent driving was within the scope of his
employment
 The employer appealed, claiming that the evidence did not support such a finding.
Issue:
 Was there sufficient evidence for the jury to conclude that Appellant was acting within the course and scope of
his employment at the time of the accident?
Rule of Law/Analysis:
 Rule of Law:
o Under the doctrine of respondeat superior, an employer is vicariously liable for the negligent acts of an
employee acting within the scope of his employment and in furtherance of the employer’s business.
o The determination of whether or not an employee is acting within the scope of his employment is determined
based on the facts of each case.
o Basis of Respondeat superior is desire to include in costs of operation inevitable losses to third party
 Analysis:
o The basis of the respondeat superior is that losses to third persons incident to carrying on a business is included
in the costs of operating a business. Insurance allows such costs to be distributed amongst the insured. Acts
connected with the business are considered deeds of the business itself.
o In the present case, Appellant’s employment contract required him to attend the sales conference and the scope
of the conference included informal socializing. The court found that the jury’s conclusion that Appellant was
acting within the course of his employment was reasonable based on the evidence.
Holding/Reasoning:
 Holding:
o Judgment affirmed.
Cameron v. Osler
Facts:
 Cameron brought suit against Jason Osler after being injured in a car accident. Cameron also filed an amended
summons and complaint, adding a claim of vicarious liability and naming Osler’s employer, Waste Connections
as a defendant. Cameron failed to timely serve Osler and he was dismissed from the suit.
 Waste connections filed a motion to dismiss, asserting Cameron’s failure to timely serve Osler precluded suit
against Waste Connections.
 The circuit court agreed and granted the motion to dismiss. Cameron Appeals.
Issue:
 Whether the employee having been released by a motion to dismiss precludes the plaintiff from suing the
employer.
Rule of Law/Analysis:
 Rule of Law:
o An employer or principal is liable for the employee’s or agent’s wrongful acts based on the negligence of the
employee or agent, not based on their liability.
o Plaintiff cannot proceed against an employer when the negligent employee has been released via a settlement
with the plaintiff. The release of the culpable party extinguishes any liability of the non-guilty principal.
o The employer’s liability hinges upon the employee’s culpability distinguished from the employee’s liability.
 Analysis:
o Respondeat superior is a legal fiction designed to bypass impecunious individual tortfeasors for the deep
pocket of a vicarious tortfeasor. It is the negligence of the servant that is imputed to the master, not the
liability.
o In this case, liability is imposed bc the plaintiff brought suit against the employer and put on evidence that the
employee committed a tort within the scope of employment. Osler’s culpability can be established even though
Osler has no civil liability to Cameron.
Holding/Reasoning:
 Holding:
o Reversed.
 Reasoning:
o Here, the dismissal of Osler was purely procedural, the dismissal did not examine or determine Osler’s
culpability, and there has been no release of Cameron’s claim or an exchange of value. Bc Cameron properly
initiated suit against Waste Connections prior to the expiration of the statute of limitations, the circuit court
erred when it held that the dismissal of Osler terminated Cameron’s suit against Waste Connections.
Hinman v. Westinghouse Electric Co.
Facts: Supreme Court of California
 Herman, an employee of Westinghouse (defendant), was driving home from a job site when he collided with
Hinman (plaintiff), causing Hinman injuries. Under the standard union contract governing Herman’s employment
with Westinghouse, Herman received compensation for his travel time and commuting expenses. Hinman brought
a negligence claim against Westinghouse, claiming that Westinghouse was vicariously liable for Herman’s tort
under the doctrine of respondeat superior. The trial judge refused to rule as a matter of law that Herman was
acting within the scope of his employment, and instead instructed the jury to determine the scope of Herman’s
employment. The jury found that Herman was outside the scope of employment, and accordingly returned a
verdict in favor of Westinghouse.
Issue:
 Should the employer, Defendant be held vicariously liable for the Plaintiff’s injuries?
Rule of Law/Analysis:
 Rule of Law:
o Where the employer and employee have made the travel time part of the working day by their contract, and the
employee is using the time for the designated purpose of returning home, the doctrine of respondeat superior is
applicable.
o Going and Coming Rule: An employee going to or from work is considered outside the scope of employment
unless the trip involves an incidental benefit to the employer.
o Losses caused by torts of employees, occurring in conduct of employer's enterprise, are placed upon that
enterprise itself as a required cost of doing business
1. employer benefited from distant market
2. employer paid for travel expenses
3. travel increases risk
 Analysis:
o Under the “going and coming” rule, an employee going to or from work is considered outside the scope of
employment, unless the trip involves an incidental benefit to the employer. Under the doctrine of respondeat
superior, employers are vicariously liable for torts committed by employees within the scope of employment.
o These losses are placed on the employer because his or her involvement in a risk-creating business allows the
employer to better absorb and distribute the costs of the risks through price increases or liability insurance.
o While a business owner may not be at fault for an employee’s tort, the owner should be liable for the incidental
and inherent risks of the business. The “going and coming” rule, which excludes commuting from the scope of
employment, is predicated on the idea that the employment relationship is suspended from when the employee
leaves work until he or she returns. However, the employment relationship is not suspended when the
employee’s commute provides a benefit to the employer.
o In this case, Westinghouse received the benefit of a larger labor pool to hire from by offering compensation for
travel expenses and commuting time. By reaching out to a larger labor market, Westinghouse also increased
the risk of transportation-related injuries and should be liable for these inherent risks. Westinghouse and
Herman contracted to make commuting time part of the working day and as long as Herman was using the time
as designated, Herman’s commute should fall within the scope of employment.
Holding/Reasoning:
 Holding:
o Westinghouse is vicariously liable for Herman’s conduct, and the decision of the trial court to leave the issue
of respondeat superior to the jury is reversed.
 Reasoning:
o The court found that the doctrine of respondeat superior should have applied, and that the trial court erred in its
instructions to the jury. The court in Hinman explained, “[t]he modern and proper basis of vicarious liability of
the master is not his control or fault but the risks incident to his enterprise.
o The court is looking for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he
has undertaken.” This axiom may extend, as in this case, to an employee’s travel, the so-called “going and
coming” rule. As the court stated, “[u]nder the ‘going and coming’ rule, an employee going to and from work
 is ordinarily considered outside the scope of employment so that the employer is not liable for his torts. The
‘going and coming’ rule is sometimes ascribed to the theory that the employment relationship is ‘suspended’
from the time the employee leaves until he returns, or that in commuting he is not rendering service to his
employer.” However, there are exceptions. “Where the employer and employee have made the travel time part
of the working day by their contract, the employer should be treated as such during the travel time, and it
follows that so long as the employee is using the time for the designated purpose, to return home, the doctrine
of respondeat superior is applicable.”

Edgewater Motels, Inc. v. Gatzke

Facts: Minnesota Supreme Court
 Gatzke (defendant) worked for Walgreen (defendant) supervising the opening of a new Walgreen restaurant.
While supervising the restaurant, Gatzke stayed at a motel owned by Edgewater (plaintiff).
 Gatzke was on call 24 hours per day to manage other Walgreen restaurants while at the motel and considered the
motel room his “office away from home.” After working into the night, Gatzke returned to his motel room and
smoked a cigarette while filling out an expense report for Walgreen.
 During this time, Gatzke’s cigarette started a fire in the room, causing serious damage to the motel.
 Edgewater brought a negligence claim against both Gatzke and Walgreen, and the jury found Gatzke to be liable
for sixty percent of the damage.
 However, the trial court determined that Gatzke’s conduct fell outside of the scope of his employment and
granted judgment notwithstanding the verdict in favor of Walgreen.
Issue:
 Was an employee’s negligence while smoking within that employee’s scope of employment thus making his
employer partially liable for his negligence?
Rule of Law/Analysis:
 Rule of Law:
o The smoking of a cigarette, if done while engaged in the business of the employer, is within the employee’s
scope of employment because it is a minor deviation from the employee’s work-related activities, and thus
merely an act done incidental to general employment.
o Factors determining whether an employee’s negligent act occurs within the scope of employment include
whether the employee’s conduct is in furtherance of the employer’s interests, whether the conduct is of the
type the employee is authorized to perform, and whether the conduct occurs substantially within authorized
time and space restrictions.
 Analysis:
o An employee’s actions that are not performed in furtherance of the employer’s interests cannot fall within the
scope of employment. Other factors that determine the scope of employment include whether the conduct is of
the type the employee is authorized to perform, and whether the conduct occurs substantially within authorized
time and space restrictions.
o The scope of employment inquiry is decided on a case-by-case basis, and courts do not typically apply a
precise rule.
o Courts have held that smoking can fall within the scope of employment, reasoning that employment is not
temporarily suspended while an employee briefly and reasonably acts for his or her own personal comfort.
o In this case, a jury could find that Gatzke was acting for Walgreen’s benefit when smoking and filling out the
expense report in his motel room. The expense reports provided documentation for Walgreen of deductible
business expenses for tax purposes.
o Gatzke considered his motel room his “office away from home” and was always on call when at the motel.
o Therefore, it’s reasonable for a jury to find that Gatzke’s conduct fell within the authorized time and space
restrictions of his employment.
Holding/Reasoning:
 Holding:
o Because the jury reasonably determined that Gatzke acted within the scope of his employment, the trial court’s
judgment notwithstanding the verdict in favor of Walgreen is reversed.
 Reasoning:
 o As a general rule, under the doctrine of respondeat superior an employer is held vicariously liable for the
tortious acts of an employee that are committed within the scope of employment. Courts have generally
included those actions that are carried out in the furtherance of the employer’s business as being within the
scope of employment. In this instance, as the court noted, the employee was in his motel room completing
paperwork, his expense account, which was work-related. As Edgewater illustrates, what constitutes the scope
of employment is a fact-based inquiry. As the court pointed out, “No hard and fast rule can be applied to
resolve the ‘scope of employment’ inquiry. Rather, each case must be decided on its own individual facts.

Class Notes
Vicarious Liability
 The goals of VL are: Social Policy
1. prevention of future injuries
2. the assurance of compensation to victims
3. the equitable spreading of losses caused by an enterprise.
 An employer is liable for torts an employee commits while acting within the scope of employment.
o If act was done while doing master's work, no matter how irregularly or with what disregard to the instruction,
master may be held liable. Vicarious liability may be found even where employee disregards employer's
instructions in committing tortious act
 Release : extinguish
 Indemnity : to recoup
 Theory behind vicarious liability is to reduce/internalize the costs
o The enterprise that is benefitting and paying out
 Going and coming rule
o No vicarious liability for the negligence of
 Was there a benefit, even indirect benefit

Duties of the work

 Employer should pay if under the scope
 Was the employee authorized?
 Was there a benefit to the employer?
 Was it a detour/frolic?
 Time and space requirements?
 Employer is vicariously liable for the negligence of their employees who are acting within the scope of
employment.
 NOT vicariously liable for the negligence of independent contractors
 exception:
 Non-Delegable Duty
o The duty remains with you, it is non-delegable
o You can transfer the work but not the duty
o The work has an inherent danger to it
 Still liable for invitees
 §2. Independent Contractors and Ostensible Agents
Pusey v. Bator
Facts: Ohio Supreme Court
 Greif Brothers (defendant) hired Bator (defendant) as an armed security guard to protect its property. Other than
telling Bator to periodically check the parking lot, Greif Brothers did not instruct Bator about the methods to
protect its property.
 One night, Bator became involved in a confrontation with a trespasser, Pusey.
 Bator shot and killed Pusey, and Pusey’s mother (plaintiff) brought a wrongful death and survival action against
Bator and Greif Brothers.
 Bator settled with Pusey, but the trial court granted a directed verdict in favor of Greif Brothers. The appellate
court affirmed the judgment.
Issue:
 Is an employer vicariously liable for injuries caused by the weapon of an armed security guard hired to protect the
employer’s property?
Rule of Law/Analysis:
 Rule of Law:
o An employer is not liable for the torts of an independent contractor unless the nondelegable duty doctrine applies,
which imposes a duty on the employer for inherently dangerous work that creates a peculiar risk of harm unless
special precautions are taken.
 Analysis:
o The work such as YSP was hired to perform does create a peculiar risk of harm to others
o When armed guards are hired to deter vandals and thieves it is foreseeable that someone might be injured by
the inappropriate use of the weapon if proper precautions are nor taken
o Thus, such an injury is one that might have been anticipated as a direct or probable consequence of the
performance of the work contracted for, if reasonable care is not taken in its performance
o The risk created is also not a normal, routine matter of customary human activity, such as driving an
automobile, but is instead a special danger arising out of the particular situation created and calling for special
precautions
Holding/Reasoning:
 Holding:
o Judgement reversed and cause remanded
o Greif Brothers is liable for the damages even though the negligence was that of an employee of an independent
contractor
 Reasoning:
o We therefore hold that when an employer hires an independent contractor to provide armed security guards to
protect property, the inherently dangerous work exception is triggered such that if someone is injured by the
weapon as a result of the guard’s negligence, the employer is vicariously liable even though the guard
responsible is an employee of the independent contractor

Class Notes
 Vicarious Liability is a type of Strict Liability
o Employer is liable for policy reasons