Vicarious Liability - Employers’ Liability for Wrongdoing of Employees
Under what circumstances is an employer liable for the wrongdoing of its employee? Both from the employer’s perspective and the victim’s perspective, the answer can be critically important to many types of lawsuits. Victims sue employers, in many cases, simply because employers have more money than the employees who actually caused the harm. It is partly because of the employer’s presumably “deep pockets” that both Pennsylvania and Federal law provide vehicles for victims to bring these claims against employers directly.
The legal terminology woven into a discussion of these issues is the doctrine of respondeat superior, or “vicarious liability.” The law has evolved over many years, but the basic idea is that an employer is vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment. In Valles v. Albert Einstein Medical Center, 758 A.2d 1238 (Pa.Super. 2000), the estate of an alleged medical malpractice victim brought a suit against the hospital in which the procedure was performed. The Pennsylvania Superior Court was called upon to decide whether the hospital was vicariously liable to the victim’s estate for the doctor’s failure to secure the victim’s informed consent prior to performing the procedure. The court explained that the answer turned on whether the doctor was a “servant” or employee of the hospital as opposed to an independent contractor.
The court noted that in certain circumstances an employer’s vicarious liability may extend to intentional or even criminal acts committed by the employee. However, not every relationship of principal and agent creates vicarious responsibility in the principal for the acts of the agent. A principal and agent can be in the relationship of an employer and employee, or simply in the status of two independent contractors. If the parties’ relationship is that of two independent contractors rather than employer-employee, the principal is generally not liable for the acts of the agent.
In determining whether the relationship is one of employer and employee or simply that of two independent contractors, the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged. The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished. The hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result. While control of the work is an important factor, other considerations include the nature of the work or occupation, the skill required for performance, whether the one employed is engaged in a distinct occupation or business, which party supplies the tools, whether payment is by the time or by the job; whether work is part of the regular business of the employer, and whether there is the right to terminate the engagement at any time. None of the factors is dispositive of a person’s status as an employee, and each case must be determined on its own facts.
In the Valles case, the court determined that the hospital was not the employer of the doctor, and was not required to make sure that the doctor obtained informed consent. There are many vicarious liability cases, however, in which the victim is not an unrelated third party, but is instead the employee of the company being sued. The most glaring examples of these types of cases are employment discrimination cases.
In Dee v. Marriott International, Inc., 1999 WL 975125 (E.D.Pa. 1999), Plaintiff Suzanna Dee brought suit against her former employer, Marriott International, Inc., and her former supervisor at the hotel in which she worked, Steven Bess, for injuries she incurred after Bess allegedly sexually assaulted and raped Dee at work. As a result of injuries sustained in this assault, Dee was unable to return to work for an extended period of time and was ultimately fired by Marriott. Dee sued both Bess and Marriott for assault and battery, wrongful discharge, and intentional infliction of emotional distress. Dee also made a claim against Marriott for the negligent hiring and retention of Bess, and failure to supervise Bess.
An authoritative compilation of law and legal trends, known as the Restatement of Agency, suggests that an employer can be vicariously liable for the torts of his employees committed outside the course and scope of their employment in certain situations. However, Pennsylvania courts have not accepted this extension of the law. In 1965, seven years after the publication of the Second Restatement of Agency, the Pennsylvania Supreme Court stated that “liability attaches to a master by reason of a servant’s negligent injury of a third person only when the servant is acting within the scope of his employment.” Cesare v. Cole, 210 A.2d 491, 493 (Pa.1965) (emphasis added).
Although it has been 37 years since the Supreme Court of Pennsylvania in the Cesare decision addressed the circumstances in which an employer can be vicariously liable for the torts of his employee, the Superior Court of Pennsylvania, our lower level appeals court, has dealt with this issue several times since then. In various assault and battery cases, the Superior Court panels noted that an employer is vicariously liable for an employee’s torts committed in the course and scope of employment, and that an employee’s intentional or criminal acts can, under limited circumstances, fall within the course and scope of employment. The Superior Court went on to declare, however, that if “the employee commits an act encompassing the use of force which is excessive and so dangerous as to be totally without responsibility or reason, the employer is not responsible as a matter of law.” Costa v. Roxborough Memorial Hosp. , 708 A.2d 490 at 493 (Pa.Super. 1998).
The definition of conduct within the scope of employment is: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits of the employment; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Costa, 708 A.2d at 493 (citing Restatement (Second) of Agency § 228 (1958)).
Thus, in the Dee v. Marriott case, the Federal District Court for the Eastern District of Pennsylvania found that Marriott was not liable because Bess’s attack was exactly the kind of forceful act that “is excessive and so dangerous as to be totally without responsibility or reason” and, therefore, his actions were outside the course and scope of his employment.
Vicarious liability is a powerful tool in the hands of a victim’s attorney, and employers are wise to take steps to institute policies which tend to curb activities which could be injurious to others. Sexual and racial discrimination cases are a main source of case law in this arena. But be aware that there is a separate body of case law which allows a victim to sue employers directly for their failure to monitor their employees, or failing to check them out before hiring them, or for failing to fire them after learning of their questionable conduct. You can read another article on that topic, entitled “Background Checks: Controlling the Conduct of Your Employees in Pennsylvania,” by clicking that link below.
The attorneys at Wolf, Baldwin & Associates, P.C. have been practicing law primarily in Montgomery County, Berks County, and Chester County for a combined total of over fifty years. Being general practitioners, we have the breadth of knowledge to help you learn and protect your rights in a wide range of civil litigation cases. If you need a lawyer for an injury claim, or you have questions about vicarious liability claims, please contact us now to schedule an appointment. We look forward to hearing from you.
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