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Personal Injury

  • Vicarious Liability


Vicarious liability is a legal concept that holds someone responsible for an injury caused by another person. The defendant’s liability is based on the nature of their relationship with the person who caused the injury. Under the concept of vicarious liability, there’s usually two parties: the principal and the agent. The person being represented is called the “principal” and the person who represents the principal’s behalf is called the “agent”. Principals, which are often companies instead of individual people, are responsible for the acts of their agents in certain circumstances. It is important to note that the agent can also always be held responsible for his own acts. Also, if the agent is not held liable for an act, the principal cannot be held liable either.

There are two types of principal-agent relationships: the agent can either be a servant of the principal or a non-servant.

  1. The most common master-servant relationships are employer-employee relationships, and they are governed by a doctrine called respondeat superior. Most situations of vicarious liability are employer-employee based and therefore fall under this category. In this type of relationship, the employer is the principal and the employee is the servant agent. The general idea with respondeat superior is that one who has the right to control and direct another person’s conduct is also liable for that other person’s harmful actions. The doctrine of respondeat superior recognizes that an employer who benefits from the employee’s actions should share in the losses caused by the employee’s action. It’s important to distinguish between whether the actor is an employee or an independent contractor, because respondeat superior does not extend to contractors.
  2. Non-servant relationships cover any agency relationship besides employer/employee, including those involving independent contractors. There is a higher standard of involvement required to hold a principal vicariously liable when the agent is a non-servant, so it’s important to distinguish between an employee and a non-servant, such as an independent contractor.

1) Respondeat Superior: Vicarious Liability for Employees (Master-Servant Relationship)

The most common type of principal/agent relationship is between an employer and employee. The determining factor in whether a relationship is that of employer/employee is the “contractual right of control” the principal has over the agent. If by contract, the principal dictates only the end product of the agent’s work, but not the manner in which the work is done, the agent is not an employee, but a contractor. But if the principal has the contractual right to control the manner in which the agent’s work is done, then the agent is considered an employee. Notably, the important factor is whether the employer has the right to control, the nature of the relationship doesn’t change if the employer chooses not to exercise this right. It’s important to note that in the employer/employee relationship, the employer is the company, not the employee’s manager.

An exception is that if the employer does not have the contractual right to control but is exercising control over the manner of the work, and the agent is allowing this exercise of control, a court may find that, in effect, there is an employee/employer relationship, despite it not being so in the contract. This may also be true when there is no contract, or when the right to control is not addressed in the contract.

  • When is an employer liable for their employee?

    Even when an employer/employee relationship exists, the employer is not vicariously liable for just anything the employee does – only acts that are within the course and scope of their employment. For the employer to be liable, the act must be done within the general scope of the general authority of the employee, in furtherance of the employer’s business, and for the accomplishment of the job the employee was hired to do. For example, when an employee assaults someone, it is usually assumed to be for accomplishment of their own personal purposes and goes outside the scope and course of their employment. In 1988, the Court of Appeals decided Kendall v. Whataburger, in which a fast food worker hit a customer in the face with hot oil and a wire fry basket after the customer complained. The court found that since the fast food worker’s job purpose was to take food orders, and prepare and serve food, attacking the customer was not within the course and scope of his employment. Therefore, in that case the employer was not held responsible for the actions of their employee.

  • Presumptions of Liability:

    In some circumstances, a person is presumed to be an employee of another and acting within the course and scope of their employment. For instance, when there is evidence the person was performing job activities that are distinctive of the employer’s business. Or, if the person is driving a car that has the employer’s name on it. When a presumption is triggered, the burden is on the employer to present evidence that the person was not actually acting as an employee.

  • Travel Associated with Work:

    Driving to and from work is NOT usually considered to be within the scope of employment. There is a “special missions” exception for situations where the employee is acting under control of the employer or in furtherance of the business. For example, the 1993 case Chevron USA Inc. v. Lee, an employee was found to be within the scope of his employment when he caused an accident en route to a mandatory conference for his employer. Since Chevron was requiring the travel, the court considered it a special mission. In contrast, an employee who is merely “on call” while driving is not considered to be on a special mission.

  • Personal Departures from Scope of Employment:

    If the employee deviates from the scope of his employment and acts for personal reasons, the employer is not responsible for those acts. Even if it’s at the place of employment and during work hours, once the employee stops acting for the benefit of the employer, the employer is no longer responsible for him. For instance, the 1996 case Mackey v. UP Enterprises, in which a female Taco Bell employee was sexually assaulted by two supervisors. The court found that the supervisors had deviated from the scope of their employment because they were acting for their own personal purposes, not in the interest of the Taco Bell. Therefore, the employer could not be held responsible for the supervisors’ actions because the supervisors were not acting in the interest of Taco Bell.

  • Combination Personal and Business:

    If an employee is simultaneously acting for his own benefit as well as that of the business, the employer can still be held liable. For instance, in the 1977 case Best Steel Bldgs v. Hardin, a construction worker was driving his car back from a special mission to pick up supplies for his employer when he negligently caused a deadly car accident. It didn’t matter that the construction worker also visited his family during the trip, since he was still making the trip at the direction of and at least partially for the benefit of his employer, the employer was held liable for the crash.

  • If the employer allows the employee to conduct their own business at the same time, or close to the same time, as the employer’s business, the court will not try to figure out whose business was being conducted at the exact moment of the incident. Unless it seems obvious that the employee could not have been acting for the employer’s business, the court will assume the employee is conducting the employer’s business at the time of the accident. For example, in the case Gilgon v. Hart, a ranch hand got into a car accident while driving back to work after making a trip with two stops: one professional and one personal. The ranch hand’s trip was for both business and personal reasons, so the court held the employer liable for the accident. To avoid liability in this situation, the employer must prove that the employee might have gone on the trip for the personal reason even if the professional reason was canceled, and that the employee would not have gone on the trip for the business reason if the personal reason was canceled.

  • Employee acts not authorized by employer:

    Even if an employee acts beyond their authority or against their employer’s express wishes, the employer is still liable if the employee is acting for the employer’s benefit and within the scope of their employment. For example, the 1995 case Hooper v. Pitney Bowes, in which a company was held liable when two of its managers slandered one of their subordinates while conducting an investigation of her work. Since conducting the investigation was within the scope of the managers’ employment, and they were acting for the benefit of the company, the company was held liable for the managers’ actions.

  • Intentional Unlawful Acts:

    Employers can be liable for not only their employees’ negligent acts, but intentional torts as well. The test is whether the employee was acting within the scope of his employment and for the employee’s benefit at the time of the intentional tort. Generally, courts will attribute an employee’s assault or battery to the employee’s own interests and the employer will not be liable.

2) Vicarious Laibility for Non-Employees (Non-servant Agent Relationship)

Vicarious liability in non-servant relationships follows the same general guidelines as in employee relationships above. The principal is only liable for acts that they have control over, and the act must be within the scope of the non-servant’s agency and for the benefit of the principal. The difference is that with a non-servant (often an independent contractor), the principal has control over a lot less. However, the principal can be liable for acts outside the contractor’s scope of agency in certain circumstances, like when the principal authorized the act in advance, apparently authorized, or expressly approved of it afterwards.

In order to determine if someone is an independent contractor instead of an employee, there are a few factors the court looks at. Those factors are: the independent nature of the worker’s business, the worker’s obligation to furnish the necessary supplies necessary to perform the work, the worker’s right to control the progress of the work, how long the worker is employed and whether the worker is paid lumpsum for the job or paid by time.


Parents: Parents are not automatically responsible for the negligence of their child solely because they are the child’s parent. However, a parent may be held legally responsible for the negligent acts of their children under limited circumstances.

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