The Nature of the Employer's Liability With Reference to Vicarious Liability
"Vicarious liability" is a legal concept whereby a party is held liable for the torts -- the civil wrongs -- of another, even if that party did not actively participate in the wrongful acts. The most common form of vicarious liability in civil lawsuits concerns the liability of employers for the torts of their employees. Sometimes referred to as the doctrine of "respondeat superior," this form of liability is a critical issue in business operation.
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How The Employer Is Held Liable
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It's not your fault when one of your workers, not paying attention to the road, gets in a car accident. It also isn't your fault when one of the cooks in your restaurant serves spoiled meat and makes somebody sick, or when one of the nurses in your medical practice improperly treats a patient and causes injury. You can be held liable, though, because the law holds the employee to be your agent. The employee is acting for you, and so his negligence is imputed to you. It doesn't have to be a subordinate employee, either; if you're in a partnership, a court can hold you liable for the torts of your partners.
What The Plaintiff Must Show
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Respondeat superior is not automatic. In order to hold you liable, the plaintiff must show that the negligent party was actually your agent, which requires showing that the party was employed by you or acting on your behalf. The plaintiff also has to show that the negligent act occurred in the course of business or while the employee was actually acting on your behalf. You can't be held liable for the things your employees do off the job; if your worker hurts somebody in a drunk driving accident on Friday night when he's on his own time, that's qaCX his own problem.
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Limits Upon Vicarious Liability
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There are limits to the reaches of respondeat superior. Even if your worker injures somebody on the job, you may be able to escape liability by showing that the worker had departed from what he was supposed to be doing at the time. Law professors call this a "frolic and detour"; the worker goes off on his own, doing something he did not have your permission to do -- stopping for a beer, running personal errands -- and hurts somebody. Other forms of employer liability -- negligent retention and negligent supervision, for example -- require a showing that you somehow breached a duty owed to the plaintiff by negligently continuing to employ a known dangerous person or failing to properly supervise the employee in his work.
Protection From Vicarious Liability
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While you can't prevent every accident, you can take steps to limit your exposure to your workers' torts. If you're going to have even one employee, incorporate or organize a limited liability company; in most cases, this will protect your personal assets. To protect your company, establish clear policies for employee behavior and enforce them to the letter. Establish a strict no-tolerance policy for sexual harassment, drug and alcohol use on the job and breaches of safety protocol. Promptly report all incidents to your liability insurer, and get a good lawyer.
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