Vicarious liability is a legal doctrine in which you can be held liable for the wrongful acts of third parties, such as your employees or agents. In California, if a court finds vicariously liable, you may be ordered to pay for the victim’s medical bills, lost wages, pain and suffering, and other losses.
This is important because the “vicariously liable” party may have more assets and insurance coverage than the person who was directly negligent or reckless.
However, the doctrine is limited to situations in which the party has a legal relationship with the person who caused the harm and the right to control at least some of that person’s actions.
The following bubble graph shows common vicarious liability relationships in California:
To help you better understand California’s laws on vicarious liability, our personal injury lawyers discuss:
- 1. What is vicarious liability?
- 2. Employers and Employees
- 3. Agents, Partners and Independent Contractors
- 4. Parental Liability
- 5. Co-Conspirators
- Additional Reading
1. What is vicarious liability?
Under the law, people are normally responsible for only their own
- negligence,
- recklessness or
- intentionally wrongful acts.
Though in certain cases, the law holds people responsible for other people’s wrongs. This is known as
- “vicarious liability” or
- “indirect liability.”
Vicarious liability arises out of a legal relationship in which:
- One party has the right to control the actions of another (at least to some extent), and/or
- It is fair as a matter of public policy to make that party assume the risks of another person’s behavior.
Vicarious liability frequently applies to relationships between an employer and its employee or a principal and its agent.
Employers are generally vicariously liable for the acts of their employees.
2. Employers and Employees
Under California’s respondeat superior law, employers can be held vicariously liable for the negligence of their employees.1
For the employer to be liable, the employee must be acting within the ordinary scope of their employment. That is, the employee must be doing something the employer might reasonably expect them to do – whether or not it is part of the employee’s regular job duties.2
Example: Jolene is injured in a slip-and-fall accident after the receptionist at her hair salon spills a coffee in the welcome area and fails to clean it up in time. Although drinking coffee is not part of her job description, it is reasonable to expect that she will drink coffee at work. Because such accidents are a foreseeable consequence of an employee’s actions in a retail business, California law deems it fair to hold the employer responsible for such injuries.
Note that under California’s law on negligent hiring, retention and supervision, an employer may be directly liable for an injury under if they knew or should have known that the employee was a risk to others.
Example: The Townsend Trucking Co. hires a driver with a history of drugged driving convictions and at-fault accidents. The company is in a hurry to fill the position, so it skips the standard background check.
Two weeks on the job, the driver is high on codeine and slams into another vehicle on the freeway, killing both occupants. In a trucking accident lawsuit, Townsend is likely to be found liable for the two wrongful deaths based on the negligent hiring of a dangerous driver.
3. Agents, Partners and Independent Contractors
Vicarious liability applies to principals as the result of acts of their:
- agents,
- partners,
- members of joint ventures,
- independent contractors (sometimes), and
- anyone performing a non-delegable duty on the principal’s behalf.3
In California, a non-delegable duty is any legal responsibility that – for reasons of public safety – cannot be entrusted to someone else. For instance, employers by law may not delegate their obligation to keep their workplaces harassment-free.
In other cases, companies and individuals (the “principal”) are liable for the acts of their agents within the scope of the agent’s powers on behalf of the principal.
Example: Lou suffers lost earning capacity when he is bitten by a dog while looking at a house he is considering buying. The dog bit him because the real estate agent negligently failed to properly close the side gate. Because the agent was acting on behalf of the seller of the house, Lou may be able to recover damages from the seller or the seller’s homeowner liability insurer. He may also be able to recover from the real estate agent or her employer.
4. Parental Liability
Parents can be vicariously liable in California for damages caused by their children under the age of 18. Parental liability is found under three general circumstances:
- When the child engages in willful misconduct (regardless of whether the parent knew the child was dangerous),
- When the parent knows a child is dangerous and fails to prevent an injury, or
- When the parent lets the child use a firearm and, as a result, someone is injured.4
Learn about parental liability for a minor driving a motor vehicle.
5. Co-Conspirators
In California, a member of a conspiracy can be vicariously liable for crimes committed by their co-conspirators. The test is whether the co-conspirators’ actions were:
- foreseeable and
- committed with the intent of furthering the objective of the conspiracy.
Crimes that commonly involve conspiracies include:
- drug trafficking,
- burglary,
- robbery,
- battery,
- sexual assault and
- manslaughter.
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- Apportioning Responsibility in Cases Involving Claims of Vicarious, Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another – Baylor Law Review.
- Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages – Valparaiso University Law Review.
- Basis of Vicarious Liability – Yale Law Journal.
- Real Persons, Corporate Persons and Vicarious Liability – Case Western Reserve Law Review.
- Vicarious Liability and Independent Contractors – A Re-Examination – Modern Law Review.