Vicarious liability
The examples and perspective in this article may not represent a worldwide view of the subject. (December 2016) |
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Tort law |
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Vicarious liability is a form of a
Employers' liability
Employers may also be
In Australia, the 'sufficient relationship' test, entailing the balancing of several factors such as skill levels required in the job, pay schemes, and degree of control granted to the worker, has been the favoured approach.[5] For an act to be considered within the course of employment, it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.[6]
Courts sometimes distinguish between an employee's "detour" vs. "a frolic of their own". For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, such as stopping to buy a beverage or use an automated teller machine while running a work-related errand, whereas an employee acting in their own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability.[7]
Principals' liability
The owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver their agent, if the driver is using the car primarily for the purpose of performing a task for the owner. Courts have been reluctant to extend this liability to the owners of other kinds of chattel. For example, the owner of a plane will not be vicariously liable for the actions of a pilot to whom he or she has lent it to perform the owner's purpose. In the United States, vicarious liability for automobiles has since been abolished with respect to car leasing and rental in all 50 states.[8]
One example is in the case of a bank, finance company or other
This requirement not to breach the peace is held upon the lienholder even if the breach is caused by, say, the debtor's objecting to the repossession or resisting the repossession. In the court case of MBank El Paso v. Sanchez,
Parental liability
In the United States, the question of parental responsibility generally follows the common law principle that a parent is not civilly liable for injuries resulting from a child's negligence merely because of the parent-child relationship.[10]
When a child causes an injury, parents may be held liable for their own negligent acts, such as failure to properly supervise a child, or failure to keep a dangerous instrument such as a handgun outside the reach of their children. Many states have also passed laws that impose some liability on parents for the intentional wrongful acts committed by their minor children.[11][10]
Liability of corporations in tort
In English law, a corporation can only act through its employees and agents so it is necessary to decide in which circumstances the law of agency or vicarious liability will apply to hold the corporation liable in tort for the frauds of its directors or senior officers.[12]
If liability for the particular tort requires a state of mind, then to be liable, the director or senior officer must have that state of mind and it must be attributed to the company. In Meridian Global Funds Management Asia Limited v. Securities Commission [1995] 2 AC 500, two employees of the company, acting within the scope of their authority but unknown to the directors, used company funds to acquire some shares. The question was whether the company knew, or ought to have known, that it had acquired those shares.
The
So if a director or officer is expressly authorised to make representations of a particular class on behalf of the company, and fraudulently makes a representation of that class to a third party causing loss, the company will be liable even though the particular representation was an improper way of doing what he was authorised to do. The extent of authority is a question of fact and is significantly more than the fact of an employment which gave the employee the opportunity to carry out the fraud.
In
Employees' continued liability and indemnity
A common misconception involves the liability of the employee for tortious acts committed within the scope and authority of their employment. Although the employer is liable under respondeat superior for the employee's conduct, the employee, too, remains jointly liable for the harm caused. As the American Law Institute's Restatement of the Law of Agency, Third § 7.01 states,
An agent is subject to liability to a third party harmed by the agent's tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment.
Every American state follows this same rule.[13]
The question of indemnification arises when either solely the employee or solely the employer is sued. If only the employee is sued, then that employee may seek indemnification from the employer if the conduct was within the course and scope of their employment. If only the employer is sued, then the employer can attempt to avoid liability by claiming the employee's conduct was outside of the scope of the employee's authority, but the employer generally cannot sue the employee to recover indemnification for the employee's torts. For an example of a court confirming an employer's right to sue an employee for indemnification, see the case of Lister v Romford Ice and Cold Storage Co Ltd.[14]
Ecclesiastical corporations
In the 2003 decision
See also
Further reading
- Gray, Anthony. Vicarious Liability: Critique and Reform. United Kingdom, Bloomsbury Publishing, 2018.
- Banerjee, Angshuman. Vicarious Liability. Ethics and Social Responsibility. Germany, GRIN Verlag, 2016.
Notes
- ^ "Religious Tech. Center v. Netcom On-Line Comm., 907 F. Supp. 1361 (N.D. Cal 1995)". Google Scholar. Retrieved 6 September 2017. citing 3 Nimmer on Copyrihgt § 12.04(A)(1), at 12-70 (1995)
- ^ Quill, Eoin (2014). Torts in Ireland. Dublin 12: Gill & Macmillan. p. 506.
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: CS1 maint: location (link) - JSTOR 1341141.
- ^ "Vicarious Liability, Report No. 56 | Office of Justice Programs". www.ojp.gov. Retrieved 2021-08-30.
- ^ Hollis v Vabu [2001] HCA 44, (2001) 207 CLR 21, High Court (Australia).
- ^ Deatons Pty Ltd v Flew [1949] HCA 60, (1949) 79 CLR 370, High Court (Australia).
- ^ Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705.
- ^ Abrams, Jim (19 December 2005). "Federal Law Puts Brakes on Vicarious Liability for Auto Rental Firms". Wells Media Group, Inc. Insurance Journal. Retrieved 6 September 2017.
- ^ "MBank El Paso, NA v. Sanchez, 836 SW 2d 151 (1992)". Google Scholar. Retrieved 6 September 2017.
- ^ a b Freer, Alice B. (1964). "Parental Libality for the Torts of Children". Kentucky Law Journal. 53: 254. Retrieved 6 September 2017.
- ^ "Parental Liability for Damages Caused by Their Children". Office of Legislative Research. Connecticut General Assembly. 4 February 2011. Retrieved 6 September 2017.
- ^ "Vicarious Liability". LII / Legal Information Institute. Retrieved 2021-08-30.
- ^ Peebles, K.A. (2011). "Negligent hiring and the information age: How state legislatures can save employers from inevitable liability". William & Mary Law Review. 53: 1397. Retrieved 6 September 2017.
- ^ "Lister v. the Romford Ice and Cold Storage Co. Ltd". Internet Archive. Retrieved 6 September 2017.
- S2CID 144364324.
References
- Yale Law Journal105
- Department of Trade & Industry. Company Law Review: Attribution of Liability (PDF)
External links
- Bramwell, George William Wilshere (1880).. London: P. S. King.