VICARIOUS LIABILITIES – LAW 101

Hello, I’m attorney Kyle Bachus. The legal world is full of overly complicated jargon and terminology that can be intimidating if you don’t know what it means. In my law 101 video series, I’m breaking down some commonly used legal terms so you can be informed and confident should you ever need to take legal action.

In this episode of law 101, we’re going to break down the legal term vicarious liability.

We talked in other videos about holding somebody accountable in a civil case if they act negligently and caused damage. It’s pretty simple if you’re just bringing a claim against the person who actually caused the harm. Vicarious liability describes other people or entities that might be responsible automatically for the conduct of another person. Even though that other person or entity isn’t the actual cause of the harm, let’s take an employer, an employee.

If you are driving on behalf of your employer, and you caused injury to somebody else by acting unreasonably on the road. If you’re in the cautious scope of employment, the employer is vicariously liable. Another good example in Colorado is children under the age of 18 operating motor vehicles. In Colorado, when you go get a minors driver’s license, an adult has to go with that minor, and they have to actually sign a piece of paper down at the DMV that says that they agree to be vicariously liable for the conduct of the minor driver.

Some states make the owner of a motor vehicle vicariously liable for whomever it is that they permit to drive their vehicle. Colorado is not one of those states; you’re not by vicariously liable just because you allow somebody to use your vehicle. What we do is we try to examine a situation as a lawyer, right? We look at the situation. We see is there anybody else who is vicariously liable. Why might that be important? Because you might find additional insurance policies, right? You might also identify immunities, which is something we talked about in a different video.

These are all part of the analysis in determining who to bring a claim against, and under what circumstances when negligent conduct results in injury. If you have any questions about a particular matter or situation where you think somebody should be or might be vicariously liable for injuries that have happened, feel free to reach out, we’re happy to talk to you about those situations at Bachus & Schanker. To learn more about other law topics that can help you feel informed and confident about the law, make sure to check out more videos in this series.

VICARIOUS LIABILITY – FAQs

The vicarious liability definition is the concept that other people or entities may be legally responsible for someone else’s conduct. The legal liability may be automatic, even though the other person or entity isn’t directly responsible for the harm.

The doctrine of vicarious liability is important because it can help a victim find other ways to receive the compensation they deserve outside of the person who directly caused the harm. Through this legal doctrine, the victim may find insurance policies that may cover damages. In addition, the vicariously liable defendant may have the resources to pay a claim directly.

A party who has vicarious liability may be able to satisfy a fair judgment in ways that the person who directly caused the harm may not be able to do. Part of ensuring that you receive fair compensation for your injuries is discovering the resources available to pay a claim. In addition, vicarious liability is fair—it holds all the parties responsible who played a role in the events that caused the injuries or property damage.

According to the respondeat superior¹ doctrine, an employer can be vicariously liable for the actions of employees during the scope and course of their employment. The negligent person must be an employee (not an independent contractor). The court looks at several factors to determine whether there is a master-servant relationship, including:

  • Control over the employee’s work
  • Assigned hours
  • Dictating the manner of work
  • The general amount of direction and control over the employee’s work
  • Rights to hire and fire the employee

When a person is an employee or agent of the employer, they must be acting within the scope of their employment for this doctrine to apply. Vicarious liability does not apply when employees take a personal detour, do something that has nothing to do with their employment, or commit an intentional tort.

Circumstances in which another party or entity may be held responsible in Colorado are:

  • An employee acting on behalf of their employer
  • An agent acting for a principal
  • A parent responsible for the acts of their child, if the parent knew of the child’s propensity to act in a way likely to cause harm
  • Parents for their teenage drivers
  • Car owners who negligently loan their vehicle to a person unsafe to drive it
  • People who co-own a business venture
  • Co-conspirators in a criminal act

Each scenario and wrongful act has its own criteria that must be met for the doctrine to apply.

Even when vicarious liability applies, the employees themselves may still be liable for their own actions. In addition, employees are responsible for intentional acts or actions taken while not working within the scope and course of employment.

In any case where vicarious liability applies, the victim is likely to name the employer in the lawsuit. Vicarious liability can protect the employee in the respect that there may be only one satisfaction of the judgment for the victim’s damages.

Part of being a business owner with employees is the risk of vicarious liability. However, vicarious liability insurance can help protect your business from the financial burden of legal claims. Professional liability insurance, also known as errors and omissions insurance, is one example of the type of business insurance coverage that may protect against vicarious liability.

In addition, some small business owners prefer to hire a contractor to lower the risk of legal responsibility found in the employer-employee relationship.

Ariel works for a flower shop. Her job is to make deliveries of bouquets. While making a delivery, Ariel failed to stop at a red light. She entered the intersection, striking another vehicle. The victim suffered injuries and property damage. Because Ariel was driving for an employer at the time of the accident, the employer is vicariously liable for damages.

Another situation where it applies is a minor driving a motor vehicle. When a minor gets a driver’s license, an adult must sign a piece of paper saying that they are liable for the actions of the minor driver. Some states make the owner of a motor vehicle responsible for whomever they allow to drive their motor vehicle. However, Colorado isn’t one of those states.

Colorado has several different legal theories for imposing vicarious liability. It may be based on an agency/employer relationship, an inherently dangerous activity, parent-child relationship, motor vehicle entrustment, co-conspirators, and the nondelegable duty doctrine². What theory applies and the exact criteria depend on the circumstances leading to the injury.

An employer is usually vicariously liable for a car accident. The two crucial questions are whether the driver is an employee and whether the driver was acting within the scope of their employment at the time of the accident.

While employers are not liable for the intentional acts of their employees, most car accidents are the result of negligence, leaving the employer open to liability.

In Colorado, an employer’s admission of vicarious liability does not prevent a claim for negligent hiring or supervision on the employer’s part. Lawmakers amended C.R.S. § 13-21-111.5³ to state that direct negligence claims are not barred when an employer acknowledges vicarious liability for an agent. The new law, passed in 2021, overruled a court decision in Ferrer v. Okbamicael⁴, 390 P.3d 836 (Colo. 2017) that prohibited both causes of action.

A lawyer can help you determine if vicarious liability law applies to your case. If it does, they can ensure that you name the appropriate parties in your claim, which must be done early in the claims process.

Then, your attorney can assist you in pleading the correct causes of action and gathering the necessary proof. Finally, they can investigate insurance policies and resources to pay a claim and work to collect your final judgment.

Vicarious liability is a helpful legal theory for personal injury victims. When applicable, it can help victims recover the full amount of compensation they deserve. However, it is technically complex. A lawyer ensures that you take the proper procedural steps necessary to assert a successful claim.

SOURCES:

¹Cornell Law School. Respondeat SuperiorLegal Information Institute (LII). Retrieved 23 February 2022.

²Springer v. City, County of Denver, 13 P.3d 794 (Colo. 2000)

³C.R.S. 13-21-111.5

Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017)