Vicarious Liability - Employers' Liability

Employers' Liability

Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment (sometimes referred to as 'scope of employment'). 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.

Courts sometimes distinguish between an employee's "detour" or "frolic". 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, whereas an employee acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability.

Neither, generally, will an employer be held liable for assault or battery committed by employees, unless the use of force was part of their employment (e.g. police officers), or they were in a field likely to create friction with persons they encountered (e.g. car re-possessors). However, the employer of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil.

Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in criminal law or tort for the acts or omissions of another.