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Justifications of the Vicarious Liability Report


Introduction

Vicarious liability holds that the legal responsibility for the misdeeds of a wrongdoer should be borne by another person who is the employer in this report. The traditional foundation of vicarious liability arose where corporate agents or employees committed a tort within the scope of their employment. The common law requires that the employers be held vicariously liable for crimes committed by their employees. For instance, considering a police officer who deliberately shoots an innocent civilian in the line of duty, the development of vicarious liability requires the government (the employer of the police officer) to bear the compensation cost. The common law provides that it is fair that the risk of the officer’s activity should be assigned to the employer (Chamallas 1315). The rationale for the vicarious liability lies in the contractual relationship that binds the employee and employer. The orthodox premise of the vicarious liability test was underpinned by two conditions. Firstly, the wrongdoer and the defendant had to be in an employment relationship. Secondly, it was required that the committed tort should fall within the scope of the occupation. These two limbs of the vicarious doctrines have changed in the modern times as justifications have been expanded to include situations outside the scope of the employment. This paper presents the justifications of the vicarious liability as applied in the contemporary world.

Defining Vicarious Liability

Vicarious liability is the accountability attached to a person or organization following the commitment of a tort. The person who commits the tort is referred to as tortfeasor while the one held responsible for the act is the defendant (Anselmi 45). The main thrusts for vicarious liability encompass three basic elements namely a tortious act by another person mainly an employee, a relationship between the tortfeasor and defendant, and a connection between the tortious act and that relationship. For wrongdoers to be regarded as employees, the vicarious liability requires that they have to satisfy three conditions. There must be an agreement between the employer and subordinate on the provision of skills in return for a reward in the form of wages or other forms. Also, there should be a degree of control exercised by the employer in the provision of skills by the employee (Cave 635). Finally, other terms of the contractual relationship must be consistent with its services.

Vicarious liability was conventionally used only when the torts committed fell within the occupation scope. In the light of this knowledge, if a wrongdoing happens outside the scope of the employment, the tortfeasor takes a personal liability. Similarly, if the tort was committed in line with the employer’s authorization, the liability was born by the defendant. This case also occurs when the employee implements the authorization wrongfully. The latter scenario was exemplified by a case whereby an employee neglected an express prohibition in the Limpus versus the London General Omnibus Company 1862. This case was about bus drivers who were involved in a competitive ‘driving and racing’ where one blocked the other buses from the rival company against the rules of the game. This situation caused an injury to a third-party individual. In this case, the bus company whose driver committed the tort was held liable. This case satisfied the three aforementioned elements of vicarious liability. The committed tort happened in line with the contractual relationship between the employer and employees. The driver was acting under the defendant’s authorization only that the skill was executed wrongfully; hence, blocking the buses of the rival company. The committed tort was a forbidden act in the competition.

Justifications for Vicarious Liability

Holding someone responsible for torts committed by a different person is contrary to the English law, which states that people should carry their cross. At the outset, the vicarious law needs justification (Giliker 306). There are numerous modern justifications of the vicarious liability. The assumption courts rely on the fact that the employers benefit from the work done by their employees. In this regard, the same way should apply to the liability resulting from the employees. The employer should bear the responsibility for torts committed by the employees.

Employers benefit from the Work of Employees

The employer stands to gain from the services of their agents; hence, they should devise an appropriate culture to guide the stakeholders. The premise of the vicarious liability stems from the fact that the employees act in the best interest of their masters (Giliker 306). For example, a milkman seeks the help of a boy to collect milk. In the event, an accident occurs whereby the boy is injured. In this case, the boy has the right to sue the milkman’s employer for compensation. The milkman seems to have been given too much work that needs an assistant, but the employer has not yet assigned. In an attempt to execute the assigned task, the milkman acted in the best interest of his job and the employer to seek the assistance of the boy in collecting the milk. The ultimate benefit of the timely milk delivery goes to the employer. Therefore, it seems feasible that the employer has to bear the responsibility for any casualties that arise in the process of the milkman carrying his duties the same way they reap the benefits of employment.

Negligent Entrustment and Control of Employee Actions

Additionally, courts perceive the imposition of the vicarious liability as fair since the employer has the highest degree of control over the employees. Besides, the employer has the ultimate power of dismissing the personnel. The legal doctrine of the vicarious liability permits employers to assume the responsibility of instilling proper work ethics and discipline constantly. Therefore, the employer must ensure that the employees possess the right skills to carry out their duties. If the employers fail to exercise control and employees commit torts, the court is justified to hold the employer liable. This scenario falls under the legal relationship subject to the vicarious liability referred to as negligent entrustment or supervision.

A perfect example of negligent entrustment is a case of a teaching hospital whereby physicians have the responsibility of supervising the medical students as stipulated in their mandate in the facility. If a patient is injured as a direct result of negligence on the part of the physicians to supervise the medical students, the plaintiff can place the claim on the physicians rather than the learners. Health providers are advised to ensure that the people offering clinical services to the society are qualified besides adequate supervision and proper certification. A similar case is shown whereby a staff nurse does not possess a current certification cardiopulmonary resuscitation. The nurse has limited knowledge about what should be done when a patient experiences a cardiac arrest. As a result, the nurse shifts the liability to the supervisor who failed to validate an active certification (Brack 147). This reasoning is common today where negligent entrustment or lack of proper supervision of the employees attracts a vicarious liability to the employers for torts committed by their agents.

Extension of Vicarious Liability

There has been a dramatic shift in the application of vicarious liability in the modern world (Judish, Connelly, and Hudolin 15). The Salmond test required that torts committed by the employees must fall within the tasks given by employers. The modern approach lies in a close connection initially coined by Lister. This approach is a modern justification for the application of vicarious liability although some scholars perceive it as unjust. In the light of this approach, a wrongful act does not necessarily happen because the tortfeasor performs an authorized act. Courts use the close connection as the justification for the vicarious liability (Judish, Connelly, and Hudolin 17).

To above justification can be demonstrated empirically by a Scotland case that involved a bus conductor who assaulted a passenger following fallout concerning the payment of the bus fare. Following the difference of opinion, the conductor decided to let the passenger alight the bus owing to the failure to pay the required bus ticket. It happened that when the passenger began alighting while the conductor instructed the driver to go ahead. The thrust of the bus pushed the passenger to ground thereby causing an injury. The passenger decided to hold the conductor’s employer vicariously liable for the tort committed by the employee. The passenger claimed compensation from the conductor’s employer. Nevertheless, the case was dismissed by the Inner House Court arguing that the conductor was liable for his crime. According to Lister, if this event took place in the modern world, the conductor’s employer can vicariously be liable since pressing the bell fell within the scope of the employment (Martin, Bates, and McMyne 131). In addition, pressing the bell, no matter what motived the conductor to do so, was sufficiently connected to the employment for the vicarious liability to take effect. The modern justification of the vicarious liability lies in the expansion of the original elements usually referred to as the Post-Lister vicarious liability.

Spreading Risks

According to Lord Millet, vicarious liability is a mechanism of the loss distribution. Imposing liability on the defendant protects the victim against perils created by the tortfeasor’s boss. The idea lays on the creation of risk by the firm governed by its position to spread it through insurance. The premise of this justification is that the employer is in a better position that the employees should take the responsibilities of the risks they create by assigning them duties (Martin, Bates, and McMyne 133). Through the insurance of employees’ torts, the employers can spread the risks to a wider pool that leaves them covered; hence, they are bound to incur fewer costs since the employees are held personally liable. The loss distribution can be divided into two versions namely the social and legal versions. As a social outcome, the practice occurs where an employer passes the loss to another person. For instance, business people can spread risks through increasing prices for their goods. This way, the buyers of the goods bear the costs of vicarious liability. In this case, the victim of the tort has no direct jurisdiction to sue the financial cost bearers (Martin, Bates, and McMyne 137).

On the other hand, the loss spreading is a legal outcome where the cost is spread by making another person directly and lawfully responsible for the loss of the victim through the vicarious liability or direct claim. It is worth noting that the loss distribution as a legal outcome does not always provide a viable justification; hence, it is not used commonly since the risk can be spread to more than one defendant. In some cases, the victim cannot directly sue the vicariously liable defendants due to the artificial nature of the legal outcome of loss spreading (Meyer III 56). The most pronounced concept of loss distribution involves the employer seeking cover through insurance. The defendant can extend the risks they create to be covered with a view of bending any claims resulting from the insured risks including employee misconduct towards the insurer. An example can be drawn from a hurry morning delivery situation where a truck driver hits a pupil crossing the road to school thereby causing a critical injury. In this case, the pupil can sue the employer of the truck driver to bear the compensation liability. The enterprise can, in turn, spread the risk to its insurer to cover the compensation (Walden 208).

Deep Pockets

More recently, courts have been shown to justify vicarious liabilities based on the financial position positions of the employers. Courts have held this belief more often by using it as a rationale for imposing vicarious liability on the employers. This justification has been considered to cater for the public policy and social convenience, as employers are believed to meet the cost of the claims that employees can never afford (Walden 209). This assumption stems from the deep pockets theory, which states that not only do employers have more money but can also spread their risks to other avenues such as alliances, product prices, and/or insurers. Employees do not have access to such channels of loss distribution because their employers financially check them.

Risk Creation5

Recently, the approach to the vicarious liability dwelled on the fact that the employer created the risk of employing wrongdoers. It holds that the creator of the risks should be held liable for any eventualities stemming from them. Therefore, then courts feel justified to hold the employers culpable for torts committed by the employees who in any case act in wrongful ways due to the authorization of the employer. The law permits employers to hire responsible people to carry out their mandates. Also, the responsibility of the enterprise is to develop an appropriate corporate culture that should be adopted by the employees. Any misconduct on the part of the corporate agents reflects the culture of that particular enterprise. In this regard, the enterprise should be held vicariously liable for the criminal activity carried out by their employees in the line of duty or on a sufficiently connected relationship between the act and employment.

The application of vicarious liability has been criticized for the lack of across all societies. Questions arise where countries and societies exercise the practice differently. Circumstances that fail to hold the employers vicariously liable for the torts committed by their employees only apply to the English law of individual accountability (Giliker 306). As a result, they favor the employers who should be held responsible for the negligence of their mandate to train and supervise their employees. On the other hand, some scholars attest that the vicarious liability is too strict on the employers and enterprises (Neild 707). This notion reveals the two sides of the vicarious liability that try to establish a balance between the corporate and personal liabilities. Although it goes against the principle that wrongdoers should carry their cross by paying for their misconducts, the ultimate guiding principle is to provide sufficient compensation to the plaintiff. The compensation can be obtained adequately if the employer or enterprise is held vicariously liable.

Conclusion

Vicarious liability allows the plaintiff to claim compensation from the employer. It is mostly associated with employers and employees. The vicarious liability is based on three elements as mentioned in the report. In addition, the paper has outlined the modern ethical and legal justifications for vicarious liability in the contemporary world. Whatever the justifications and extensions that have been put forward, the vicarious liability focuses on maintaining various safety standards to reassure the neglected victim that compensation will be borne by a capable party.

Works Cited

Anselmi, Katherine. “Ethics, Law, and Policy. Nurses’ Personal Liability Vs. Employer’s Vicarious Liability.” MEDSURG Nursing 21.1(2012): 45-48. Print.

Brack, Graham. “Nurse Prescribing and Vicarious Liability.” Nurse Prescribing 12.3(2014): 147. Print.

Cave, Tabitha. “The Evolution Of Vicarious Liability: When Are Employers Responsible?” Nursing & Residential Care 15.9(2013): 635. Print.

Chamallas, Martha. “Two Very Different Stories: Vicarious Liability Under Tort And Title VII Law.” Ohio State Law Journal 75.6(2014): 1315. Print.

Giliker, Paula. “Vicarious Liability ‘On the Move’: The English Supreme Court and Enterprise Liability.” Journal of European Tort Law 4.3(2013): 306. Print.

Judish, Julia, Ellen Connelly and Keith Hudolin. “Impact of Supreme Court Pro-Employer Title VII Decisions Blunted By State Laws.” Employee Relations Law Journal 39.3(2013): 14-21. Print.

Martin, Sean, Reed Bates and Michael McMyne. “Are You As Guilty As The Criminal? Liability for Criminal Acts of Third Parties and Employees.” FDCC Quarterly 64.2(2015): 131-176. Print.

Meyer III, Charles. “The Case for Employment Practices Liability Insurance.” Employee Relations Law Journal 38.2(2012): 54-58. Print.

Neild, David. “Vicarious Liability and the Employment Rationale.” Victoria University of Wellington Law Review 44.1(2013): 707. Print.

Walden, Roger. “Vicarious Liability For Intentional And Wrongful Acts By Employees: The Case Of Vaickuviene -Highlighting Lacunae In The ‘Close Connection’ Test?” Business Law Review 35.6(2014): 207-210. Print.

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IvyPanda. "Justifications of the Vicarious Liability." July 9, 2020. https://ivypanda.com/essays/justifications-of-the-vicarious-liability/.

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IvyPanda. 2020. "Justifications of the Vicarious Liability." July 9, 2020. https://ivypanda.com/essays/justifications-of-the-vicarious-liability/.

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IvyPanda. (2020) 'Justifications of the Vicarious Liability'. 9 July.

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