Vicarious Liability

Overview

“Vicarious liability” means legal responsibility for a tort committed by another person or entity. It is a legal doctrine that says, in plain language, “The buck stops here.” As stated in California Civil Code sec. 2338:

Unless required by or under the authority of law to employ that particular agent, 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 agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.

Example of a dog bite case where the requirements for vicarious liability were not met

In Baker v. Kinsey (1869) 38 Cal. 631 the court held that an action to recover damages for the bite of a vicious dog belonging to the toll-keeper cannot be maintained against the owner of the bridge if it appears that the owner of the bridge did not keep or harbor the dog in person, and did not authorize or require the tollkeeper to keep the dog, and did not know that the dog was being used in the conduct or protection of the business in which the owner of the dog was employed. 

Examples of vicarious liability in California cases that did not involve dog bites

In Walsh v. Hunt (1898) 120 Cal. 46, the supreme court was considering the act of an agent to whom an executed note and mortgage had been left for delivery. The agent altered the figures evidencing the principal sum and the rate of interest. The court held that the agent was a mere bailee for delivery. The supreme court mentions this case in Otis Elevator Co. v. First Nat. Bank, supra, and says that “it is not at all in point in this matter.”

In Rahmel v. Lehndorff (1904) 142 Cal. 681 it was held that an innkeeper was not liable for an assault and battery committed by a waiter in a dining room upon one of his guests. This case is distinguished in Ruppe v. City of Los Angeles (1921) 186 Cal. 400, where the supreme court says: “Something, perhaps, should also be said as to the statement in the second sentence quoted from Rahmel v. Lehndorff, that ‘the wrongful act must be one which the servant is empowered under some circumstances to do.’ If this be taken to mean that the act must be one which the servant is authorized in some circumstances to do, the statement is undoubtedly too narrow.” A simple illustration is given, and the court goes on to say: “In other words, while the master has not empowered the servant to break the law in the sense that he has authorized him to do so, he has empowered him in the sense that he has entrusted him with the performance of a duty in whose performance it is possible for him to break the law.”

In Riordan v. Gas Consumers’ Association (1906) 4 Cal.App. 639, 643: “The question generally is whether the servant at the very time of the alleged act of negligence, had departed from his employment, or whether he departed from or neglected a duty in the line of his employment. In the first case, the principal is not responsible for the servant’s acts, and in the second case he is responsible.”

Hopkins v. Western Pacific Railroad Co. (1875) 50 Cal. 190 was an action for damages for the construction of a railroad. In the syllabus to the decision appears this statement: “A railroad company is not responsible for the acts of its employee in creating a nuisance by using a culvert under its railroad near the residence of plaintiff for the purpose of a privy.” 

Stephenson v. Southern Pacific Co. (1892) 93 Cal. 558 was a case where an engineer backed his engine toward a street car crossing the railroad track with the simple intent to frighten passengers on the street car. A frightened passenger, believing herself in danger, jumped from the street car and was injured. Held, that the act of the engineer was not done in the scope of his employment.

In Copelin v. Berlin Dye Works Etc. Co. (1914) 168 Cal. 715, jewelry was left in a suit of clothes delivered to the driver of one of the defendant’s wagons for the purpose of having the clothes cleaned. The jewelry disappeared. It was held that the cleaning company was not chargeable as an involuntary or gratuitous bailee so as to be liable for the theft of the jewelry. The court pointed out that the cleaning company assumed no duty of safekeeping the jewelry and delegated no such duty to its servants, and hence the court held that the theft was not within the scope of the employment.

Methods of establishing vicarious liability

Principal and Agent

A principal may be liable for the wrongful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the principal directly authorizes the tort or crime to be committed; (2) if the agent commits the tort in the scope of his employment and in performing service on behalf of the principal, regardless of whether the wrong is authorized or ratified by the principal, and even if the wrong is criminal; or, (3) if the principal ratifies its agent’s conduct as its own. Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969; see – California Civil Jury Instruction (CACI) 3701; Civil Code sections 2295, 2338.

Employer and Employee (private)

The rule of respondeat superior is simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. An employee’s willful, malicious, and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 296-297; see – CACI 3701, 3704.

Government Entity and Public Employee

“Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Govt. C. §820(a). Sec. 820.2 states, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Gov. Code, § 815.2 sibs. (a).

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Gov. Code, § 815.2 subs. (b).

Peculiar-Risk Doctrine

A person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure injuries caused by inherently dangerous work will be compensated, the person for whose benefit the contracted work is done bears the responsibility for any risks of injury to others, and adequate safeguards are taken to prevent such injuries. Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 646-647; CACI 3708.

Ostensible Agency

Ostensible authority arises as a result of conduct of the principal which causes the third party reasonably to believe the agent possesses the authority to act on the principal’s behalf. Ostensible authority may be established by proof the principal approved prior similar acts of the agent. Where the principal knows the agent holds himself out as clothed with certain authority, and remains silent, such conduct on the part of the principal may give rise to liability. Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 426-427; see – CACI 3709; Civil Code sections 2298, 2300.

Ratification

Ratification is the voluntary election by a person to adopt in some manner as his own act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73; see – CACI 3710; Civil Code sections 2307, 2310, 2311, 2339.

Partnerships

Under traditional legal concepts, the partnership is regarded as an aggregate of individuals with each partner acting as an agent for all other partners in the transaction of partnership business, and the agents of the partnership acting as agents for all of the partners. Marshall v. Int’l Longshoremen’s etc. (1962) 57 Cal. 2d 781, 783. The partners of a partnership are jointly and severally liable for the conduct and torts injuring a third party committed by one of the partners. Black v. Sullivan (1975) 48 Cal.App.3d 557, 569; see – CACI 3711.

Joint Venture

There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it); they must share the profits of the undertaking; and the members must each have an ownership interest in the enterprise. Where a joint venture is established, the parties to the venture are vicariously liable for the torts of the other in the furtherance of the venture. Cochrum v. Costa Victoria Health-care, LLC (2018) 25 Cal.App.5th 1034, 1053; see – CACI 3712.

Nondelegable Duty

Nondelegable duties derive from statutes, contracts and common law precedents. They do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 316; see – CACI 3713.

Conspiracy

Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511; see – CACI 3600.

Alter- Ego Doctrine

The term “alter ego” describes a doctrine, the application of which results in either the obligations of a corporation being treated as those of its equitable owners [Minton v. Cavaveny (1961) 56 Cal. 2d 576, 579] or the obligations of the equitable owners being treated as those of the corporation [Wenban Estate, Inc. v. Hewlett (1924) 193 Cal. 675, 696-697]. See also: Corporations Code section 17703.04(b) – limited liability company similarly subject to alter ego doctrine.