There are several areas of the law where a person may be held legally accountable for the wrongful actions of another person. This is often referred to as “vicarious liability”. While certainly not exhaustive, our comments below address some of the more common examples of vicarious liability.
- Employer / Employee
An employer may be held responsible for the torts of his/her employee under three distinct theories: respondeat superior, negligent hiring and retention, and negligent entrustment.
- Respondeat Superior
Under this doctrine, an employer may be held vicariously liable for the negligent conduct of an employee, as long as those acts are within the scope of employment. In order to recover from an employer, a plaintiff (injured victim) must prove (1) a master and servant relationship between employer and employee; (2) that the employee was in the process of his employer’s business at the time of the tort; and (3) that the employee was in the scope of his employment at the time of the tort.
Often, an employee who deviates far from his duties has taken himself out of the scope of the employment. However, in other circumstances, even an employee’s willful or malicious conduct may be determined to be within the scope of his or her employment.
- Negligent Hiring and Retention
In order to establish a claim for negligent hiring or retention, a plaintiff must prove that the employer of the individual who committed the allegedly tortuous act negligently placed an unfit person in an employment situation involving unreasonable risks of harm to others. Virginia has also recognized negligent retention of an independent contractor.
- Negligent Entrustment
An employer who allows an employee to use a vehicle or other property when the employer knows or has reason to know that because of the employee’s youth, inexperience, physical or mental disability, or otherwise, the employee may use the vehicle or property in a manner involving unreasonable risk of physical harm to himself and others, is subject to liability.
- Subcontractors
Employers, generally, are not liable for the acts of independent contractors, as opposed to employees. However, there are limits on this immunity fro liability. For instance, where one engages an independent contractor to do work that is inherently dangerous, work which is likely to cause injury to person or property, the employer may be subject to liability if the contractor fails to use due care. See Ritter Corp. v Rose, 200 Va. 736 (1959). Likewise, if the work to be performed constitutes a nuisance, the employer cannot avoid liability simply because it engaged an independent contractor to perform the work. See Finley, Inc. v Waddell, 207 Va. 602; Norfolk & W. Ry. V Johnson, 207 Va. 980 (1967).
- Respondeat Superior
- Motor Vehicle cases
- Owners
Often, the owner of a vehicle can be held liable for accidents involving their vehicle even if they were not the driver. The circumstances and details of each situation need to be carefully examined to determine if liability exists on the part of the owner, either solely because of their ownership of the vehicle, or based on a negligent entrustment theory of liability, based on the nature of the owner’s decision to allow someone else to use their vehicle.
- Passengers
The negligence of the driver of an automobile will typically not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. A guest has a right to maintain an action for damages against an owner or operator of an automobile in which he is riding. See Va. Code § 8.01-63.
- Owners
- Parental Liability for Torts of Children
Generally, a parent is not liable for the malicious, intentional acts of his/her minor child, unless / except for their own independent negligence in failing to control the child, or entrusting the child with a dangerous item. See Bell v Hudgins, 232 Va. 491 (1987). There is a statutory exception to this, providing parental liability for damage to public or private property caused by a minor child for damages up to a limit of $2,500.00. See Va. Code § 8.01-43; 44.
Another key exception to this general rule is if a person gives or furnishes a minor who is too young to obtain a driver’s license a motor vehicle, such person shall be jointly and severally liable with the minor for any damages that may be caused by the minor’s operation of that motor vehicle. See Va. Code § 8.01-64.
- Dram Shop
A vendor of alcoholic beverages is not liable for injuries sustained by a third party that result from the intoxication of the vendor’s patron. See Williamson v Old Brogue, Inc., 232 Va. 350 (1986). The basis of the rule is that individuals, drunk or sober, are responsible for their own conduct and that, apart from statute, drinking the alcohol, not furnishing it, is the proximate cause of the injury.
The Alcoholic Beverage Control (“ABC”) Act makes it a misdemeanor to sell alcoholic beverages to an intoxicated person but this does not mean that the statute creates a cause of action in favor of the plaintiff trying to impose civil liability on a seller of alcoholic beverages licensed under the ABC Act.
