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Vicarious liability

Elements of Vicarious Liability of an Employer: Most often, a victim is required to prove that the elements of
vicarious liability exist. If he fails to do so, the court may find that the employer is not liable for the damages. The
primary element of vicarious liability that must be proven is the agreement the employee entered into as a condition
of employment required the employee to work under the authority of the employer. Additional elements of
vicarious liability require the employer to have control over the employee, and the actions of the employee to have
fallen within the scope of his employment at the time of the incident.
For example: Bob hires John as a forklift operator. While moving a large crate to the customer loading zone, John hits
a customer’s car, damaging it. John was engaged in the duties required by his employment, therefore Bob can be
held vicarious liable for the damages.

Scope of employment: It refers to the actions of an employee within the terms of his employment. It varies,
depending on the specific requirements of the job the employee is hired to do. There are several instances however,
where a worker is not working inside the scope of employment. There are certain circumstances in which a worker is
not working within a scope of employment. These include:
Independent Contractors – Individuals performing work for someone else, though not considered legal employees
but independent contractors are not working within the scope of employment for the sake of vicarious liability.
Illegal Acts – The commission of an illegal act is not within the scope of employment. Any damages caused by the act,
or during the commission of the act, are not considered an employer’s responsibility in most cases.

Employee acting outside his scope of employment: Employers whose employee engages in an activity that was not
directed or controlled by the employer may not be responsible for damages. This depends on what the activity was,
and what purpose it served. For instance, an employee simply taking a “detour” while in the business of his
employer, such as stopping to get gas while making deliveries, may still expose the employer to liability. Having gas
in the vehicle is necessary to making the employer’s deliveries. On the other hand, an employee who remembers her
child forgot her permission slip to the 4th grade field trip, runs home to pick it up, then delivers it to the school, all
while she is supposed to be making those deliveries, is definitely not engaged in the employer’s business. Any
damages caused, say from having a traffic accident while rushing to the school, is not the employer’s responsibility.
This is known as an employee “frolic.”
Vicarious Liability in medical care: In a medical setting, a hospital or doctor can be held vicariously liable for a claim
based on the acts of one of its employees. This includes the actions of its physicians, nurses, laboratory personnel,
imaging and other technicians, CNAs, administrative employees, and other staff members. Due to the possibility of
vicarious liability, hospitals, clinics, and doctors are responsible for ensuring all of their employees have the
necessary qualifications and credentials needed to perform their jobs. If a physician or other healthcare provider is
considered an independent contractor of a hospital, vicarious liability may not apply, though laws on this vary by
state.
For example, a few weeks after John had abdominal surgery at his local hospital, he felt he had perhaps
broken a rib, and went to the Emergency Department. The x-ray showed that a surgical clamp had been left inside
John’s abdominal cavity, which required immediate surgery for removal. John can sue the original surgeon for
medical malpractice, but he can also sue the hospital, which holds vicarious liability for the actions of its physicians.

Other types of vicarious liability: Vicarious liability may apply to a number of situations in which someone other than
the person who caused damages has some type of control, direction, or ownership in the situation. The most
common “other” types of vicarious liability include principal liability and parental liability.
Principal liability - An automobile owner can be held vicariously liable if he lends his vehicle to another person and
that person causes damage or injury through negligence. This generally only applies if the driver was using the car in
order to perform a task for the owner of the vehicle.

For example, Robert, who recently had surgery to repair a broken leg, lends his car to Jane so that she can run
personal errands for him. As Jane is pulling out of the parking lot at Robert’s bank, she hits another vehicle. Robert
may be held vicariously liable for Jane’s accident. If, on the other hand, Jane kept Robert’s car to use while he is laid
up and she hit another car while driving to the grocery store, for her own needs, Robert is not likely to hold
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vicariously liable. Simply lending a car to someone does not expose the owner to liability for the driver’s actions. The
driver would need to be acting in the service of the owner.
 Parental liability - In the United States, parent liability is an issue that is poorly understood and evolving.
Parents can be held directly liable for their own actions as related to their children, such as allowing a child
to drive, or leaving a loaded gun within a child’s reach. If the child in either circumstance caused harm by
taking advantage of the opportunity left before them by the parent, the parent can be held liable. In some
jurisdictions, parents may be held vicariously liable for negligent acts committed by their child, if the parent
failed to provide adequate supervision.

For example, Nancy works eight hours a day, and cannot afford to hire a babysitter to watch her 10 and 12 years old
boys after school. She feels they are old enough to take care of themselves during that short time until she gets
home. One afternoon, Nancy’s sons join other neighborhood children in throwing rocks at a neighbor’s backyard
workshop, breaking out three windows. In many jurisdictions, Nancy may be held vicariously liable for her sons’
destructive acts and be ordered to replace the windows.

Vicarious Liability Example as Court Holds Employer Responsible: Patrick Lynch was a cattle drover for the Cavan
Town Cattle Market. In 2010, he and two other employees were supposed to be herding cattle between pens, on the
way to the auction floor. This is a three-man job, but Patrick’s fellow employees left to take care of their own
business, leaving him to move the cattle by himself. While moving through the pens to open a gate, Patrick had to
pass behind a large bull, which kicked him in the groin, causing serious injuries. Patrick filed a civil lawsuit against
Cavan Town Cattle Market, claiming his injuries were a direct result of his employer’s negligence.

The employer responded, stating that the employee should not have performed the duties if the job was
unreasonably risky. The court ruled in favor of the employer, finding it had not been negligent, and overlooking any
question of negligence on the part of the two other employees. Patrick appealed his case. The appellate court
disagreed with the lower court’s decision, holding that the actions of the other two workers, who had deserted their
duties, acted negligently. The employer, therefore, was vicariously liable for those employees’ acts. The court further
held that the employer had a duty to provide a safe work environment, and that it had failed in that duty. The
appellate court did not overlook Patrick’s own contribution to his injuries, finding that he indeed should not have
performed the duty if it was risky. The amount of Patrick’s damages was reduced by 33%, as he was found to be one-
third responsible. This is referred to as “contributory Negligence.”

Some related legal terms and issues:

 Civil lawsuit - A lawsuit brought about in court when one person claims to have suffered a loss due to the
actions of another person.
 Damages - A monetary award in compensation for a financial loss, loss of or damage to personal or real
property, or an injury.
 Liable - Responsible by law; to be held legally answerable for an act or omission.
 Negligence - Failure to act as or to exercise the level of care of, another reasonably prudent person would
be expected to act.
 Victim - A person who is injured, killed, or otherwise harmed as a result of a criminal act, accident, or other
event.
 Qui facit per alium facit per se - Latin phrase meaning one who acts through another acts in one's own
interests.
Principal-Agent Relationship: The principal-agent relationship is an arrangement in which one entity legally appoints
another to act on its behalf. In a principal-agent relationship, the agent acts on behalf of the principal and should not
have a conflict of interest in carrying out the act. The relationship between the principal and the agent is called the
"agency," and the law of agency establishes guidelines for such a relationship. A principal-agent relationship is often
defined in formal terms described in a contract. For example, when an investor buys shares of an index fund, he is
the principal, and the fund manager becomes his agent. As an agent, the index fund manager must manage the fund,
which consists of many principals' assets, in a way that will maximize returns for a given level of risk in accordance
with the fund's prospectus.

The principal-agent relationship can be entered into by any willing and able parties for the purpose of any legal
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transaction. In simple cases, the principal within the relationship is a sole individual who assigns an agent to carry
out a task; however, other relationships under this guise have a principal that is a corporation, a non-profit
organization, a government agency or a partnership. The agent is most often an individual capable of understanding
and ultimately carrying out the task assigned by the principal. Common examples of the principal-agent relationship
include hiring a contractor to complete a repair on a home, retaining an attorney to perform legal work, or asking an
investment advisor to diversify a portfolio of stocks.
In each scenario, the principal is the individual seeking out the service or advice of a professional, while the
agent is the professional performing the work. Whether the principal-agent relationship is expressed clearly through
a written contract or is implied through actions, the principal-agent relationship creates a fiduciary relationship
between the parties involved. This means the agent acting on behalf of the principal must carry out the assigned
tasks with the principal's best interest as priority.
The agent is responsible for completing tasks given by the principal so long as the principal provides
reasonable instruction. Additionally, the agent has an obligation to perform tasks with a certain level of skill and care
and may not intentionally or negligently complete the task in an improper manner. A duty of loyalty is also implied
within the principal-agent relationship, which requires the agent to refrain from putting himself in a position that
creates or encourages a conflict between his interest and the interest of the principal.

Strict and Absolute Liability

The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all
the damage which is the natural consequence of its escape - Blackburn, J.
Absolute Liability: If an industry or enterprise is engaged in some inherently dangerous activity from which it
is deriving commercial gain and that activity is capable of causing catastrophic damage then the industry officials are
absolutely liable to pay compensation to the aggrieved parties. The industry cannot plead that all safety measures
were taken care of by them and that there was negligence on their part. They will not be allowed any exceptions
neither can they take up any defence like that of ‘Act of God’ or ‘Act of Stranger’. The rule of absolute liability, in
simple words, can be defined as the rule of strict liability minus the exceptions. In India, the rule of absolute liability
evolved in the case of MC Mehta v Union of India. This is one of the most landmark judgements which relates to the
concept of absolute liability.
The facts of the case are that some petroleum gas leaked in a particular area in Delhi from industry. Due to
the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the rule of
strict liability and stated that the defendant would be liable for the damage caused without considering the
exceptions to the strict liability rule. According to the rule of absolute liability, if any person is engaged in an
inherently dangerous or hazardous activity, and if any harm is caused to any person due to any accident which
occurred during carrying out such inherently dangerous and hazardous activity, then the person who is carrying out
such activity will be held absolute liable.
The exception to the strict liability rule also wouldn’t be considered. The rule laid down in the case of MC
Mehta v UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure
that victims of such accidents get quick relief through insurance, the Indian Legislature passed the Public Liability
Insurance Act in the year 1991.
The Public Liability Insurance Act, 1991: This act was introduced with the aim of providing immediate relief
to people who are victims of accidents in which handling of hazardous substances is involved. The main focus of the
Act is to create a public liability insurance fund which can be used to compensate the victims. The Act states that any
person who is carrying out inherently dangerous or hazardous activities should have insurances and policies in place
where he will be insured against liability to provide compensation to the victims in case any accident takes place, and
some injury occurs. This liability is based on the principle of “no fault liability” or in other words, the rule of strict
liability and absolute liability. Inherently dangerous or hazardous substance covers under its scope any mixture,
preparation or substance which because of its properties can cause serious harm to human beings, animals, plants,
property or the environment. If any substance is inherently dangerous or hazardous due to its handling also, then
also the absolute liability of the defendant arises.
 Act of God: The phrase “act of God” can be defined as an event which is beyond the control of any human
agency. Such acts happen exclusively due to natural reasons and cannot be prevented even while exercising
caution and foresight. The defendant wouldn’t be liable for the loss if the dangerous substance escaped
because of some unforeseen and natural event which couldn’t have been controlled in any manner.
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 Act of the Third Party: The rule also doesn’t apply when the damage is caused due to the act of a third party.
The third party means that the person is neither the servant of the defendant, nor the defendant has any
contract with them or control over their work. But where the acts of the third party can be foreseen, the
defendant must take due care. Otherwise, he will be held responsible.

Strict Liability: The earlier stated definition remains half done if the following terms are not emphasized upon:
 Dangerous Thing: According to the above mentioned rule, the liability of escape of a thing from a person’s
land will arise only when the thing or substance collected is a dangerous thing i.e. a thing which is likely to
cause mischief or damage to other people in person or their property on its escape. In various torts cases
filed worldwide, the ones involving the doctrine of strict liability have held “large body of water, gas,
electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, rusty wires, etc. as dangerous
things.
 Escape: The thing that has caused damage or mischief must ‘escape’ from the area under the occupation and
control of the defendant. This can be better explained by bringing in two examples-

1. Case- Crowhurst vs.Amersham Burial Board, (1878) 4 Ex. D. 5; Cheater vs. Cater, (1908) 1 K.B. 247:-
If the branches of a poisonous tree that is planted on the defendant’s land spreads out to the neighbouring plaintiff’s
land, this amounts to the escape of that dangerous, poisonous thing from the boundaries or control of the
defendant and onto the plaintiff’s land. Now, the issue arises, if the cattle of the plaintiff nibbles on these leaves,
then the defendant will be held liable under the mentioned rule even when nothing was done intentionally on his
part.

2. Case- Read vs. Lyons and Co., (1947) A.C. 156:-

The plaintiff worked as an employee in the defendant’s shell manufacturing company, while she was on duty within
the premises of the company, a shell being manufactured there exploded due to which the plaintiff suffered injuries.
A case was filed against the defendant company but the court let off the defendant giving the verdict that strict
liability is not applicable here as the explosion took place within the defendant’s premises, the concept of escape of
a dangerous thing like the shell from the boundaries of the defendant is missing here. Also negligence on the part of
the defendant could not be proved.
 Non-natural use of land: Water collected on land for domestic purposes does not amount to non-natural use
of land but storing it in huge quantity like that in a reservoir amounts to non-natural use of the land (Rylands
vs. Fletcher). This distinction between natural and non-natural use of land can be made possible by its
adjustment to existing social conditions. Growing of trees is held natural use of land but if the defendant is
found to grow trees of poisonous nature on his land then it is non-natural use of the land. If the land has
been used naturally yet a conflict has risen between the defendant and the plaintiff, owing to natural use of
land, the court will not hold the defendant liable.
 Mischief: To make the defendant liable under the doctrine of strict liability, the plaintiff needs to prove that
the defendant made non-natural use of his land and escape of the dangerous thing caused mischief/damage
to him. The resultant damage needs to be shown by the plaintiff after successfully proving that unnatural use
of the land was done by the defendant.
 Consent of the plaintiff – this exception follows the principle of “violent non fit injuria”. For instance, if A and
B are neighbors and they share the same water source which is situated on the land of A, and if the water
escape and causes damage to B, he can’t claim damages, as A wouldn’t be liable for the damage.

Case:- In Charing Cross Electric Supply Co. vs. Hydraulic Power Co. (1914) 3 KB 772, the defendants’ duty was to
supply water for industrial works but they were unable to keep their mains charged with the minimum required
pressure which led to the bursting of the pipe line at four different places resulting in heavy damage to the plaintiff
which was proved with evidence. The defendants’ were held liable in spite of no fault of theirs. In a brief note the
essential conditions for a tort to be held under the Doctrine of Strict Liability are;
a) Non-natural use of land must have taken place.
b) Escape of a dangerous thing from that land on which it was kept must have taken place.