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Vicarious Liability

Fairfax Injury Lawyer Brien Roche Addresses Vicarious Liability Analysis

Brien Roche

The concepts of vicarious liability and scope of employment are related.  They are not identical.  If one is within the scope of employment then there will be vicarious liability.  Vicarious liability however does not always involve scope of employment issues.

Vicarious Liability Analysis:Two Steps

The analysis is two steps. First, is the person an employee or independent contractor. In most cases that revolves around the issue of how much control the principal exercises. If the person is a contractor then in most cases there is no vicarious liability. Secondly is the question of scope of employment. If the person is an employee then was she acting with the scope.

Vicarious Liability Analysis:Control

In the case of Hesse v. Long & Foster Real Estate, Inc., 2007 W.L. 4562818, the Eastern District of Virginia dealt with the issue of whether or not a real estate agent was an employee for whom Long & Foster could be held liable.  The court noted that the power to control is critical. It must relate to means and method of the work and not just the results of that work.  In that case the court found that Long & Foster did not exercise control over the means and methods.

Scope

The Restatement Third, Agency, page 198 states that an employee acts within the scope of employment when performing work assigned by the employer or while subject to the employer’s control.  The general factors that are considered in that regard are:

  • The extent to which the employee was motivated by a desire to serve the employer.
  • Was the employee on duty?
  • Did the event occur on the employer’s premises or on premises where the employee’s duty would normally cause him to be?
  • The extent to which the conduct was causally-related to the employment.

If there is doubt as to whether a person is within the scope of their authority, that doubt will be resolved against the master in most cases because the master is the one who set the servant in motion.  Crowell v. Duncan, 145 Va. 489, 501 (1926).

Pleading

In A.H. v. Church of God in Christ, Inc., 297 Va. 604, 633 (2009), the Supreme Court addressed the adequacy of a complaint for purposes of demurrer.  In this case there was an allegation that a church employee had sexually abused a child.  The allegation was that the offender was an employee of the church. The abuse occurred during the course of his performing duties that were within the scope of his employment. Also at all times he was acting as an employee of the church.  Those allegations were sufficient to survive a demurrer. 

The Supreme Court  however seems to have backed away from some of the prior cases that indicate that as long as the employment furnished the occasion for the employees’ misconduct, then there is a basis for holding the employer liable.  In Parker v. Carilion Clinic, 296 Va. 319 (2018), the court summarized prior holdings and said that an act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.  That appears to be a deviation from prior decisions where the intentional conduct of a defendant was found to be within the scope of the employment because the employer created the opportunity for the misconduct.

Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages. Also see the post on this site dealing with injury issues.

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Vicarious Liability

Fairfax Injury Lawyer Brien Roche Addresses Vicarious Liability Analysis

Brien Roche

The concepts of vicarious liability and scope of employment are related.  They are not identical.  If one is within the scope of employment then there will be vicarious liability.  Vicarious liability however does not always involve scope of employment issues.

Vicarious Liability Analysis:Two Steps

The analysis is two steps. First, is the person an employee or independent contractor. In most cases that revolves around the issue of how much control the principal exercises. If the person is a contractor then in most cases there is no vicarious liability. Secondly is the question of scope of employment. If the person is an employee then was she acting with the scope.

Vicarious Liability Analysis:Control

In the case of Hesse v. Long & Foster Real Estate, Inc., 2007 W.L. 4562818, the Eastern District of Virginia dealt with the issue of whether or not a real estate agent was an employee for whom Long & Foster could be held liable.  The court noted that the power to control is critical. It must relate to means and method of the work and not just the results of that work.  In that case the court found that Long & Foster did not exercise control over the means and methods.

Scope

The Restatement Third, Agency, page 198 states that an employee acts within the scope of employment when performing work assigned by the employer or while subject to the employer’s control.  The general factors that are considered in that regard are:

  • The extent to which the employee was motivated by a desire to serve the employer.
  • Was the employee on duty?
  • Did the event occur on the employer’s premises or on premises where the employee’s duty would normally cause him to be?
  • The extent to which the conduct was causally-related to the employment.

If there is doubt as to whether a person is within the scope of their authority, that doubt will be resolved against the master in most cases because the master is the one who set the servant in motion.  Crowell v. Duncan, 145 Va. 489, 501 (1926).

Pleading

In A.H. v. Church of God in Christ, Inc., 297 Va. 604, 633 (2009), the Supreme Court addressed the adequacy of a complaint for purposes of demurrer.  In this case there was an allegation that a church employee had sexually abused a child.  The allegation was that the offender was an employee of the church. The abuse occurred during the course of his performing duties that were within the scope of his employment. Also at all times he was acting as an employee of the church.  Those allegations were sufficient to survive a demurrer. 

The Supreme Court  however seems to have backed away from some of the prior cases that indicate that as long as the employment furnished the occasion for the employees’ misconduct, then there is a basis for holding the employer liable.  In Parker v. Carilion Clinic, 296 Va. 319 (2018), the court summarized prior holdings and said that an act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.  That appears to be a deviation from prior decisions where the intentional conduct of a defendant was found to be within the scope of the employment because the employer created the opportunity for the misconduct.

Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages. Also see the post on this site dealing with injury issues.

Contact Us For A Free Consultation

Contact Us For A Free Consultation