Vicarious Liability

Unlawful interference with another’s person or property amounts to trespass.  Vicarious liability is the responsibility of the superior for the acts of their subordinate.  It is the responsibility of a third party who has the right, ability or duty to control the activities of a violator.  Action in trespass lies against one committing trespass through another, as his/ her active agent or joint participant, though s/he has no personal hand in trespass.

Generally, a person is not liable for trespass unless the act is committed by that person or by a third person on his/ her orders.  The liability of a master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master’s business.  “The liability does not arise where the servant has stepped aside from his/her employment to commit a tort which the master has not directed in fact or could be supposed from the nature of his/her employment to have authorized or expected the servant to do”[i].

To support an action sounding in trespass the relationship of a master and a servant must be established between a defendant and those who committed the acts complained of.  When the action is not done by the defendant himself; or not by the person employed, paid or controlled by the defendant, s/ he cannot be made liable.  Liability flows from the relationship of master and servant.  The relation includes the power to direct the servant in the execution of the duties of his/her employment, and to control the acts that no injury is done to third persons[ii].

An employer can be held vicariously liable for an employee’s tortuous act against the person or property of a third party in the transaction of the employer’s business under the theory of respondent superior.  The principles of respondent superior apply when the claim is based in tort and the plaintiff alleges that the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.  An employer can be held liable under the principles of respondent superior for the tortuous acts of its agents in three situations:

  • when the agent’s actions are expressly authorized by the principal;
  • when the action is committed within the scope of the agent’s employment and in furtherance of the employer’s business; or
  • when the agent’s actions are ratified by the principal[iii].

The doctrine of respondent superior includes cases where wrong was intentionally, willfully or maliciously done in such manner as to authorize punitive damages.  The master need not authorize or expressly ratify his/her acts.

Additionally, a corporation can be held liable for trespass committed by its officers or agents, in the course of their employment, upon the lands, personal property or person of another.  The general rule is that such officers and agents of a corporation who violate a duty owed to third persons are liable to such persons for their torts.  A corporation is not only liable for its own torts but for the torts of its agents, committed within the scope of the agents’ authority and course of employment, even though the corporation did not authorize, ratify, or forbade the act[iv].

Tortuous liability for trespass cannot be imposed on a company for the act done by an owner for his/ her own benefit.  Moreover, a close family relationship will not impose vicarious liability for the offense of trespass.  A husband can under certain circumstances act as the agent for his wife.  However, the relationship of husband and wife does not create agency.  To establish the agency relationship, the evidence must be clear, satisfactory and sufficiently strong to explain and remove the equivocal character’ of the marital relationship[v].

Moreover, an agent principal relation can give rise to vicarious liability.  A principal adopting or ratifying agent’s action after the completion of act give rise to a presumption that the act of trespass was committed with principle’s consent.  The ratification binds the principal.  In order to sustain an action of trespass it is necessary to prove actual participation by defendant in the damnifying act or ratification[vi].

[i] Woody v. Ball, 5 Tenn. App. 300, 304 (Tenn. Ct. App. 1927).

[ii] .Starego v. Soboliski, 11 N.J. 29, 33-34 (N.J. 1952).

[iii] Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. N.C. 1993).

[iv] Russell v. American Rock Crusher Co., 181 Kan. 891, 894 (Kan. 1957).

[v] Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 836 (Ind. Ct. App. 2005).

[vi] Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 172 (Ala. 1907).


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