A NOTE ON VICARIOUS LIABILITY OR RESPONDEAT SUPERIOR
Under the common law, employees are not only liable for their own negligence, but employers also
are automatically or vicariously liable for the negligence or other torts of their employees committed
within the scope of their employment. This requires no finding of fault or negligence on the part of the
employer. It requires only that an employer-employee relationship or its equivalent exists. The
employee and employer are jointly and severally liable for the plaintiff’s damages.
Vicarious liability derives from the reasoning that (1) the employee is acting on the employer’s behalf,
(2) the employer is usually exercising control and supervision over the employee’s conduct, (3) the
employer is in the better position to accept financial responsibility or to insure against it, and (4) the
employer receives the benefit of the employee’s work and should therefore also bear the burden of the
employee’s negligent conduct. Thus, some courts have characterized it as respondeat superior, or “let
the master answer.” As a result, the primary limit on vicarious liability is drawn by the distinction
between employees and independent contractors. If the person employed is considered to be an
independent contractor, the employer usually is not liable for the tort committed. Typically, a
contractor is not supervised and operates relatively independently; hence, the rationale for holding the
employer liable breaks down. This distinction is a question of fact that is often disputed. The labels
chosen by the parties involved to describe themselves, such as staff consultants or contractors or the
like, are not determinative. What is crucial is their actual working relationship and the nature of the
supervision and control actually or potentially exercised by the employer. Once that supervision or
control exists— and regardless of whether it is properly exercised -- the employer becomes potentially
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liable for the torts of the employee.