Employee status, nondelegable duties, and statutory owner liability

Black-letter propositions

1. 01

   Respondeat superior makes an employer liable for an employee's torts within the scope of employment, without regard to the employer's care; it does not apply to independent contractors, and courts weigh factors such as control over the details of the work, whether the worker has a distinct business, who supplies tools, and whether pay is by the job or by time.

2. 02

   Jurisdictions test scope with a benefits test, under which an employer is liable for harm from an employee's after-hours activity on its premises that it permitted and that conceivably benefits it, or a characteristics test, under which the employer is liable if the conduct is characteristic of the job.

3. 03

   A person who hires an independent contractor is usually not vicariously liable for the contractor's torts, but remains liable for the hirer's own negligence in selecting the contractor and for harm caused by orders or directions the hirer negligently gave.

4. 04

   Some duties are nondelegable, so the hirer stays liable for the contractor's negligence: inherently dangerous activities, duties arising from a relationship with a specific plaintiff or the public, a storekeeper's or landowner's duty to keep premises open to the public reasonably safe for invitees, and in a minority of jurisdictions duties to comply with state safety statutes.

5. 05

   Under the peculiar risk doctrine, a person who hires a contractor for inherently dangerous work can be liable when the contractor's negligence injures others, but California, in Privette, refuses to extend the doctrine to the contractor's own employees, who have workers' compensation.

6. 06

   Statutes can impose liability on an owner for permissive users: California's Vehicle Code makes an owner liable for negligent operation by anyone using the vehicle with the owner's permission, limits liability that does not arise from an agency or employment relationship to $15,000 per person, $30,000 per accident and $5,000 for property, excludes punitive damages for the driver's conduct, and lets the owner recover from the operator what the owner pays.

Use this attack sequence under time

Common wrong turns

• A worker's own label as an independent contractor does not control; the substance of control and the other factors do.
• A nondelegable duty makes the hirer liable for the contractor's negligence, which is different from the hirer's own negligence in choosing the contractor.
• An owner's statutory liability for a permissive driver is often capped and does not reach punitive damages.

Worked example

A store hires a cleaning company to mop its floors, and the company's worker leaves a wet spot without a warning sign. A customer slips and is injured.

Practice this topic

Employees and independent contractors

Cornell's Wex entry says respondeat superior holds an employer legally responsible for the wrongful acts of an employee if the acts occur within the scope of employment. It reports that there is no national standard and that most jurisdictions use one of two tests. Under the benefits test, an employee's social or recreational pursuits on the employer's premises after hours that are endorsed by the employer's express or implied permission and are conceivably of some benefit to the employer make the employer liable. Under the characteristics test, an employer is liable if the employee's action is common enough for the job that it could fairly be deemed characteristic of it.

The same entry says the doctrine applies to employees and not to independent contractors, and it lists the Third Restatement's balancing factors. They include the extent of control over the details of the work, whether the agent has a distinct business, the skill required, who supplies the tools and the place, how long the agent is engaged, whether pay is by the job or by time worked, whether the work is part of the principal's regular business, and whether the parties believe they are creating an employment relationship.

Hiring contractors: what the hirer still answers for

Wex's entry on independent contractors says that employers who hire them usually have no vicarious liability for their torts. It lists nondelegable duties for which the employer remains liable: inherently dangerous activities, duties arising out of a relationship with a specific plaintiff or the public, the duty of storekeepers and landowners to keep premises open to the public reasonably safe for invitees, and, in a minority of jurisdictions, duties to comply with state safety statutes. The entry adds that employers may be liable for their own negligence in selecting contractors, and for physical harm caused by an act committed by a contractor pursuant to orders or directions the employer negligently gave.

In Privette v. Superior Court, the California Supreme Court described the peculiar risk doctrine as making a person who hires an independent contractor for inherently dangerous work liable for tort damages when the contractor's negligent performance injures others. It held that the doctrine does not extend to the contractor's own employees, who are entitled to workers' compensation regardless of fault, and it noted that California was among a minority of jurisdictions that had allowed such recovery before.

Statutory liability of vehicle owners

California Vehicle Code section 17150 provides that every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the vehicle by any person using it with the owner's express or implied permission. Section 17151 limits the liability of an owner that does not arise through a principal-agent or master-servant relationship to $15,000 for the death or injury of one person in one accident, $30,000 for more than one person, and $5,000 for property damage, and it says the owner is not liable for punitive damages imposed to punish the operator.

Section 17153 gives an owner who pays under the chapter a right of subrogation, so the owner may recover from the operator the total amount of any judgment and costs the owner pays. These features distinguish owner liability by statute from the vicarious liability of an employer, which is not capped.

Frequently asked questions