Employer Liability

Let me start with some legal speak – at common law, a master was responsible for the

torts of his servant. Today, we call the master an employer and we call the servant an employee.

I’ve been both and I can say as an employer, I never felt like a master and as an employee, I sure

as hell didn’t regard myself as a servant. But I digress.

Let’s expand on the statement: a master is responsible for the acts of his servants done in

the performance of the master’s work and as a means and for the purpose of performing it. So

the first question is: are you a servant or employee or are you an independent contractor? To be

an independent contractor you must be able to control the method and manner of doing the work.

Otherwise, the master/employer controls those things or so it seems.

I’m an attorney and I have attorneys who work for me. I don’t really think I direct the

manner in which our attorneys do their work, but I guess I could if I wanted to. Nevertheless,

I’ve resigned myself to the fact that I’m responsible for what my attorneys are doing. I’m

responsible for supervising their work. Ultimately – the issue comes down to control of the

method and manner of work. True independent contractors come in and do the work their way

but in doing so, satisfy whatever contractual terms are involved. Employees are different – they

are here day to day. Their job doesn’t end after one task is done.

The term for an employer’s liability for the torts of his/her employees is vicarious

liability. Vicarious liability should be distinguished from other types of liability. For example:

consider negligent hiring, negligent training and negligent supervision. These are direct torts

(civil wrongs) and these direct torts stem from the employer’s own shortcomings. Vicarious

liability relates to the employee’s shortcomings – for which the employer is going to be held


Another question to ask when vicarious liability is the topic is whether the employee was

working within the scope of their employment. Was the employee doing what they were hired to

do or did they wander off the reservation and doing something unexpected? We can’t expect an

employer to control an employee who is doing something unexpected or doing something for

which they weren’t hired.

I like the term borrowed servant. In the business world, it is commonplace for a business

to lease equipment and an employee to operate that equipment. It has long been settled law that

the borrowed servant may be dealt with as the servant of the person to whom they have been lent.

Have you ever been lent to someone else? Regardless, the water gets muddied sometimes

because arguments are made that the borrowed employee is really an independent contractor.

The question again becomes: who controls the method and manner of doing the work?

Vicarious liability is a way of spreading the risk of harm. An employer can buy insurance

and can insure against tortious activity. For that – we give thanks.