Materials on Vicarious Liability
Capital University Law School Orientation
Professors Barnhart & Molina1
OUTLINING HANDOUT
(Complete this during the outlining session and use it to study for your VL
practice exam. You do not need to hand this in).
VICARIOUS LIABILITY
BIG PICTURE CONCEPT:
VL = An employer is liable for the harm caused by their employee when
they are in the scope of their employment.
ISSUE SPOTTING =
R2 (entire rule overview)
Restatement (Second) of Agency § 228
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force
is not unexpectable by the master.
Understand!

How does it fit together?

What does (2) add?
(2) Conduct of a servant is not within the scope of employment if it is different in
kind from that authorized, far beyond the authorized time or space limits, or too
little actuated by a purpose to serve the master.
1
These materials were developed for the PREP program through the collaborative efforts of Professors
Melinda Molina and Susan Gilles.
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Add MORE information going requirement by requirement
(a) KIND
RULE Statement (a) Employee’s conduct is within the scope of employment if it is
of the kind he is employed to perform;
Analysis Pointers [Add application pointers – a description of how to apply this part of the
rule to help you remember & understand it].
TIP – what is the employee’s wrongful conduct?
TIP – what does Section 2 say?
Examples [Can you think of examples from the vicarious liability material, cases,
hypotheticals, class discussions, or class notes? Try to find one where the rules is met and one
where it is not met].
(b) TIME AND SPACE LIMITS
RULE Statement (b) Employee’s conduct is within the scope of employment if it
occurs substantially within the authorized time and space limits;
{TIP – do time and space separately}
AUTHORIZED TIME Rule =
Analysis Pointers [Add application pointers – a description of how to apply this part
of the rule to help you remember & understand it].
{TIP – what does Section 2 say?}
{TIP – how does this relate to detour/frolic+re-entry?}
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Examples [Can you think of examples from the vicarious liability material, cases,
hypotheticals, class discussions, or class notes? Try to find one where the rules is met
and one where it is not met].
AUTHORIZED SPACE Rule =
Analysis Pointers [Add application pointers – a description of how to apply this part
of the rule to help you remember & understand it].
{TIP – what does Section 2 say?}
{TIP – how does this relate to detour/frolic+re-entry?}
Examples [Can you think of examples from the vicarious liability material, cases,
hypotheticals, class discussions, or class notes? Try to find one where the rules is met
and one where it is not met].
(c) EMPLOYEE’S PURPOSE
RULE Statement (c) Employee’s conduct is within the scope of employment if it is
actuated, at least in part, by a purpose to serve the master;
Analysis Pointers [Add application pointers – a description of how to apply this part of the
rule to help you remember & understand it].
{TIP: analyze subrules as needed}
• R2 §228(2) {TIP – what does Section 2 say?}
•
Dual purpose rule {TIP – what is this rule?}
•
Analysis Pointers
•
Examples
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•
•
Primarily personal rule TIP – what is this rule?}
•
Analysis Pointers
•
Examples
Detour/Frolic+Re-entry rule {TIP – how does this relate to detour/frolic
+re-entry?}
•
Analysis Pointers
•
Examples
(d) FORCE USED
RULE Statement (d) if force is intentionally used by the servant against another, the
conduct is within the scope if the use of force is not unexpectable by the master.
Analysis Pointers
{TIP: Very short – just explain the concept and when to use it}
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