An employer will be vicariously liable for tortuous acts committed by its employee if the acts occur within the scope of employment. To be within the scope of employment, the conduct need not be actually authorized. A payer is not liable for the acts of independent contractors unless a tort involves a non-delegable duty, such as the duty of care owed to an invitee. An individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.
For example, plaintiffs allege that defendant is vicariously liable for one of its employee’s tortious conduct under the theory of respondeat superior. Plaintiffs specifically allege that: (1) the employee acted within the scope of his agency with defendant at the time of a car accident, (2) the employee operated a motor vehicle in the course of his employment, (3) Defendant entrusted the employee with a motor vehicle. Yet, if plaintiffs have not presented any material facts to prove their allegations and that the tort occurred in the course of a business transaction, the employer would not owe plaintiffs a duty. If the employee did not commit the auto accident in the course and scope of his employment, the defendant would not be liable to plaintiffs.
A principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agents in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal. An employer, in the role of principal, is vicariously liable for the torts committed by its agent, the employee, within the scope of employment.
The theory of vicarious liability exists because it is unjust to exonerate a business from responsibility for injuries occurring in the course of its activities. The relationship of “employer and employee” exists whenever the employer retains a right to exercise direct and complete control over how work shall be done, and how the result is to be accomplished.
For example, if once a worker finished work, it is understood that the employees would no longer be under the control or authority of defendant, and that their time after work would be their own, an accident occurring at this time would not be the liability of the employer.
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