“Under the doctrine of “respondeat superior,” an employer may be liable for an employee’s (or “ostensible employee’s”) tortious acts committed within the scope of the employment. Respondeat superior imposes vicarious (or derivative liability) upon the employer—i.e., it imputes the employee’s fault to the employer and thus makes the employer responsible in damages just as if the employer personally committed the tortious act. Respondeat superior is therefore a form of strict liability: The employer is responsible for the employee’s wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct. By the same token, because respondeat superior liability is derivative in nature, the employer may raise all defenses that the employee could raise and cannot be assessed damages (on that theory) greater than the amount for which the employee is liable.
The justification is in part based on “deep pockets”: As between employer and employee, it is felt that the employer is more likely to be able to respond in damages to an innocent third person injured by the employee’s tortious conduct (i.e., by working for the employer, the employee has increased the employer’s profits). Also, employers are generally better able to protect against such risk by insurance, the cost of which can be spread over the entire business (and passed on to the public). But “deep pockets” is not the only rationale for respondeat superior liability. The doctrine is also grounded upon “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” (As will be seen, liability is imputed only for acts arising out of the course and scope of employment. Although frequently described with reference to business enterprises, respondeat superior liability can attach to nonbusiness employers, such as households employing domestic help. Even a household can obtain insurance, and thus is in a better position to absorb the risk of injury than an uninsured employee or an innocent third party victim. Plaintiffs seeking to hold an employer liable under respondeat superior are not required to name or join the employee tortfeasor as a defendant.
Indeed, plaintiff need only prove an employee caused the injury, not necessarily which employee was at fault. Where it is clear one or more of defendant’s employees acted negligently, but the exact wrongdoer cannot be identified, respondeat superior liability will lie. “Even where the plaintiff names and joins a particular employee and the judgment is for that employee, a simultaneous judgment against the employer will be upheld if the evidence supports the conclusion that other uncharged employees committed the wrongful acts.” Although joining the employee is not mandatory, it may be useful to do so for discovery purposes (i.e., to be able to subpoena or serve interrogatories upon the employee). There may be cases where the employer can be sued on other theories as well—e.g., negligent entrustment, negligent supervision or perhaps negligent hiring. If there is an independent basis for holding the employer liable, it will usually be to plaintiff’s advantage to plead both the respondeat superior and independent liability theories. Reason: In multidefendant cases, the trier of fact will have to make a separate determination of what percentage of fault is attributable to the employer under the independent theory; the employer, in turn, will be liable for that portion of noneconomic damages resulting from both the fault allocated to the employee and the fault allocated to the employer on the independent theory.
The following elements must be established to find liability under the doctrine of respondeat superior. Each is a fact question to be determined by the trier of fact. Plaintiff must first show the tortfeasor was actually employed by defendant, or that plaintiff was an agent or “ostensible employee” at the time of the wrongful act or omission. In many respondeat superior cases, the threshold issue is the tortfeasor’s employment status—i.e., whether the tortfeasor is the hirer’s employee or, instead, an independent contractor. Subject to a few public policy exceptions, hirers cannot be held vicariously liable for the wrongdoing of their independent contractors. Evidence that the tortfeasor signed a so-called “independent contractor agreement” with the hirer is not dispositive of employee vs. independent contractor status. Rather, the factual nature of the relationship must be examined.
Respondeat superior may also be based on “actual” or “ostensible” agency. A principal may be vicariously liable for injury committed by an act of its “actual” agent where: The principal directly authorizes the act to be committed; The agent commits the act in the scope of his or her employment and in performing service on behalf of the principal; or The principal ratifies its agent’s conduct after the fact by voluntarily electing to adopt the agent’s conduct. A formal agreement is not necessary to create an agency relationship. Agency may result “from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” The factors to be considered in determining whether a person is another’s agent are the same as in determining whether an independent contractor is an employee—i.e., various factors are considered, but the right of control is pivotal. Respondeat superior may also be based on “ostensible” agency (or employment), which is not a true agency (or employment) relationship but, rather, is rooted in principles of estoppel: A principal may be precluded from denying an agency (employment) relationship if the principal, expressly or by conduct, caused others to believe that such a relationship exists and they reasonably relied thereon in dealing with the supposed agent (or employee).
Like estoppel, the essential elements of ostensible agency are: a representation (or omission) by the principal (some act or neglect by the principal sought to be charged leading plaintiff reasonably to believe the third person was the principal’s agent/employee); plaintiff’s justifiable reliance thereon (plaintiff dealt with the supposed agent in the reasonable belief he or she was authorized to act on the principal’s behalf and was not negligent in relying upon the supposed agent’s apparent authority); plaintiff’s change of position or injury resulting from such reliance.
Whether an employee’s wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”: Whether the act was either required by the employer or “incidental” to the employee’s duties (“nexus” test); or Whether the employee’s misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”). Minor deviations for personal reasons do not take the employee outside the scope of employment. But respondeat superior cannot be invoked when an employee substantially departs from normal work duties for private reasons. When the deviation occurs during the employee’s normal employment activities (not before or after work hours), the issue is one of foreseeability—again, whether the particular deviation is not so “unusual or startling” as to make it unfair to saddle the employer’s business with the liability. Even if the activity qualifies as a “special errand,” the employee will be deemed outside the scope of employment if, at the time of the accident, the employee had completed or totally abandoned the employer’s business for personal reasons. But to constitute “abandonment” for this purpose, the deviation from the employer’s business must be “substantial and complete.” Employees simultaneously pursuing both a business errand and a personal objective are still acting within the scope of employment.
Although the employee’s wrongful conduct may fall outside the employment relationship or scope of employment (thereby precluding respondeat superior liability for the conduct), the injured party may be able to hold the employer liable for negligent hiring and/or supervision—i.e., hiring, retaining or failing to oversee an incompetent or unfit employee whose characteristics might pose a danger to persons the employee is expected to come into contact with in the employment relationship (e.g., customers and suppliers).
The “nondelegable duty” doctrine prevents a party who owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The concern is for public safety: ‘One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.'”
[California Practice Guide: Personal Injury [certain citations omitted]]
