Vicarious Liability – Responsibility Flows Up

Vicarious liability is a legal theory holding one party responsible for the negligence of another.  An employee drives a company vehicle, causing an accident.  Vicarious liability holds the company responsible.

Generally, vicarious liability attaches when a “master and servant” relationship exists.  If so, the master faces responsibility for the servant’s misdeed.

The relationship exists if the alleged master holds power of control or direction over the servant.  The master’s right of control underlies vicarious liability, whether actually used or not.

Respondeat Superior – One Type of Vicarious Liability

The law rarely uses Latin any more.  This exception, respondeat superior, refers to the specific type of vicarious liability holding employers responsible for the negligence of employees.   Respondeat superior roughly translates into let the master answer for the wrongs of the servant.  Note that the law retains the terms “master” and “servant”.

Vicarious Liability – Other Scenarios

Franchise operations present vicarious liability questions.  A franchisor owns the idea and the license.  The franchisee runs the local business.  The golden arches typify a famous example.

In one case an overnight worker sued both the local franchisee and the corporate franchisor after he was attacked by an intruder and claimed negligent failure to provide adequate security.  In Vandemark v. McDonald’s Corporation the New Hampshire Supreme Court found no liability on the part of the franchisor.  The court found that the “master’s” role was only to recommend security measures, not to actually adopt and implement the measures.

But an Illinois case went the other way.  The difference was that in the Illinois case, a corporate regional security manager acted directly as security supervisor for the local franchisee.  In both cases, courts analyzed the facts of how franchisor and franchisee interacted, and not merely how contracts and other legal documents attempted to define the roles.

Independent Contractor Relationship

Those who hire independent contractors generally face no liability for damages caused by the independent contractor’s negligence.  An exception hinges on whether the employer retained control over the manner in which the work was performed.  It is not enough that he has merely a general right to order the work stopped or resumed, to inspect progress, to receive reports, or to make recommendations.  Rather, liability is more likely where the employer of the independent contractor controls methods of work, supplies tools and uniforms, and specifies work hours and conditions.

What contracts and other documents say is not as important as how the people actually act in the relationship.

Liability by Statute

Some states make the owner of a motor vehicle involved in an accident liable by statute, whether or not the owner was driving.

In Massachusetts the registered owner of a motor vehicle at the time of a collision is presumed responsible.  M.G.L. c. 231:85B presumes the vehicle was controlled, used by and under the control of a person for whose conduct the owner was legally responsible.  The law allows the owner to rebut the presumption, shifting the burden to the owner to prove they were not responsible.

New Hampshire law approaches the scenario differently.  If a vehicle is insured, the insurance applies to any person who obtained possession or control of the vehicle with express or implied consent of the owner, even if the actual use of the vehicle at the time of the accident was expressly or impliedly forbidden by the owner.  RSA 264:18, VI does not apply if the vehicle was stolen.

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