In my January 22nd post, I discussed factors which determine whether or not someone is classified as an independent contractor or an employee. There are obvious financial benefits for an organization that utilizes independent contractors opposed to employees. However, there are also legal benefits involved. Respondeat superior is Latin for “let the master answer.” Vicarious liability is a form of liability that arises under the doctrine of agency and causes an employer, in many circumstances, to be responsible for the actions of their employees performed within the course of employment.
In order for an organization to be held vicariously liable for torts, an employer/employee relationship generally needs to be established. Please see my post from January 22nd for further information on how that determination is made. If it is determined that an employer/employee relationship does exist, then both the employee and the employer can be held liable for injuries caused by the employee. In order to determine if an employer will be held vicariously liable, the courts will try to determine whether or not the act was committed within the scope of employment. They will generally consider whether or not the employee was in a time and space characteristic of their work, whether they were providing some sort of benefit to the employer, and if they were performing a task which they were authorized to perform.
If the act is determined to have occurred within the scope of employment, then the employer is liable whether the act was intentional, reckless, or an accident. It is important to take this into consideration when making hiring decisions. For independent contractors, vicarious liability is significantly narrowed. If the hiring party was negligent in hiring a competent independent contractor, they may be held liable. If the independent contractor injures someone invited onto the hiring party’s real property (e.g., a customer), there can be liability for the hiring party. The hiring party can also be held liable if the activity that is being carried out by the independent contractor is inherently dangerous such as blasting or repossession work. Also, if the hiring party gives outsiders the impression that the independent contractor is an employee, they can be held vicariously liable.
Please keep in mind that calling someone an independent contractor does not necessarily make them an independent contractor. If you have any questions regarding this topic, please contact the attorneys at Demorest Law Firm, PLLC (www.demolaw.com).
Joseph Violi / Guest Blogger
