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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.  However 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 the broker 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.  As a result the court found that Long & Foster did not exercise control over the means and methods. Call, or contact us for a free consult.

Specific Criteria for Independent Contractor

What is critical in the analysis is whether the right to control exists.  That right may not be exercised.  The existence of the right however is critical.  Also specific criteria to look at are:

  • Is the work being performed part of the employer’s business?
  • Is the employer responsible only for the result?
  • What are the terms of the agreement between the parties?
  • What is the level of skill required to perform the work?
  • Who supplies the tools and the equipment?
  • Does the employer have the right to terminate?
  • Is he paid by the hour or by the job?
  • If it’s a driving job, is the driver directed to take specific routes?
  • Is the driver given an application to use in order to determine the route?
  • Is there a contract between the employer and the customer that identifies who is doing the work, what their status is and how they are paid?
  • Who has responsibility for background checks, drug testing and checking licenses?

Vicarious Liability Analysis: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.

However 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).

Vicarious Liability Analysis:Pleading

In A.H. v. Church of God in Christ, Inc., 297 Va. 604, 633 (2019), the Supreme Court addressed the adequacy of a complaint for purposes of demurrer.  There was an allegation that a church employee had sexually abused a child.  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.

However the Supreme Court  seems to have backed away from some of the prior cases. They 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. In addition it 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. Call, or contact us for a free consult.

Giant of Maryland

In Giant of Maryland, Inc. v. Enger, 257 Va. 513, 516, 515 S.E.2d 111 (1999), the Court noted two elements. The acts must have been performed within the scope of the duties of the employment. Also they must have been in the execution of the service for which the employee was hired.  Merely showing that the employee was on the clock, using the employer’s property or on the employer’s premises is not enough.  That appears to be a change 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. In addition see the page on apparent agency . 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.  However 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 the broker 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.  As a result the court found that Long & Foster did not exercise control over the means and methods. Call, or contact us for a free consult.

Specific Criteria for Independent Contractor

What is critical in the analysis is whether the right to control exists.  That right may not be exercised.  The existence of the right however is critical.  Also specific criteria to look at are:

  • Is the work being performed part of the employer’s business?
  • Is the employer responsible only for the result?
  • What are the terms of the agreement between the parties?
  • What is the level of skill required to perform the work?
  • Who supplies the tools and the equipment?
  • Does the employer have the right to terminate?
  • Is he paid by the hour or by the job?
  • If it’s a driving job, is the driver directed to take specific routes?
  • Is the driver given an application to use in order to determine the route?
  • Is there a contract between the employer and the customer that identifies who is doing the work, what their status is and how they are paid?
  • Who has responsibility for background checks, drug testing and checking licenses?

Vicarious Liability Analysis: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.

However 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).

Vicarious Liability Analysis:Pleading

In A.H. v. Church of God in Christ, Inc., 297 Va. 604, 633 (2019), the Supreme Court addressed the adequacy of a complaint for purposes of demurrer.  There was an allegation that a church employee had sexually abused a child.  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.

However the Supreme Court  seems to have backed away from some of the prior cases. They 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. In addition it 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. Call, or contact us for a free consult.

Giant of Maryland

In Giant of Maryland, Inc. v. Enger, 257 Va. 513, 516, 515 S.E.2d 111 (1999), the Court noted two elements. The acts must have been performed within the scope of the duties of the employment. Also they must have been in the execution of the service for which the employee was hired.  Merely showing that the employee was on the clock, using the employer’s property or on the employer’s premises is not enough.  That appears to be a change 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. In addition see the page on apparent agency . 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