Vicarious liability, independent contractors, and contribution

Black-letter propositions

1. 01

   An employer is vicariously liable for employee torts within scope, including work assigned or conduct intended partly to serve employer.

2. 02

   Commutes and major personal frolics are usually outside scope; minor detours may remain within it.

3. 03

   Intentional torts can be within scope when job-related force, friction, or employer purpose is present.

4. 04

   Hiring parties generally are not vicariously liable for independent contractors, subject to nondelegable duties, peculiar risk, apparent agency, and negligent selection or supervision.

5. 05

   Joint tortfeasor contribution and indemnity depend on comparative responsibility, agreements, vicarious status, and local law.

Use this attack sequence under time

Common wrong turns

• Calling a worker contractor does not control the right-to-control test.
• An employee's forbidden act can still be within scope.
• Vicarious liability does not erase the employee's own liability.

Worked example

A delivery driver takes a two-block personal detour and negligently hits a pedestrian while returning to the route.

Practice this topic

Employers and contractors

Cornell describes respondeat superior as the doctrine holding an employer or principal responsible for the wrongful acts of an employee or agent within the scope of employment or agency. There is no national standard, and most jurisdictions use a benefits test or a characteristics test. The characteristics test asks whether the action is common enough for the job to be fairly deemed characteristic of it.

Cornell says employers who hire independent contractors usually have no vicarious liability for their torts, but certain duties are non-delegable, including inherently dangerous activities, duties arising from a relationship with the plaintiff or public, and duties to keep premises open to the public safe.

Direct negligence and contribution

An employer may be liable for its own negligence in selecting an independent contractor if it was negligent in hiring, and for physical harm caused by acts done under orders or directions the employer negligently gave. A plaintiff often sues both employer and employee, and joint and several liability then applies.

After paying, a jointly liable defendant may seek contribution from co-defendants in proportion to their responsibility.

Cornell contrasts respondeat superior with strict liability by noting that a court will apply the doctrine to an employer regardless of how closely the employer monitored the employee. That means the analysis turns on scope of employment and the test your jurisdiction uses, not on the employer's fault. State the test, then apply it to each act the fact pattern describes.

Frequently asked questions