Negligence - Employees and other agents

Learning Outcomes

This article explains when an employer (or principal) is liable for negligence committed by employees and other agents, including:

• Distinguishing employees from independent contractors using the control test and recognizing common MBE fact patterns that disguise employees as “independent contractors.”
• Identifying when conduct is within the “scope of employment,” including classic frolic-and-detour problems, the coming-and-going rule, special-errand situations, and dual-purpose trips.
• Recognizing when employers are vicariously liable for intentional torts, especially in jobs involving force, security, or conflict with customers.
• Applying the general rule of no vicarious liability for independent contractors and spotting the main exceptions (nondelegable duties, especially dangerous activities, statutory duties, and apparent agency).
• Separating direct liability (negligent hiring, supervision, training, retention, and entrustment) from vicarious liability, and understanding how joint and several liability and indemnification routinely appear in exam questions.
• Analyzing vicarious liability for other agents, such as business partners and apparent agents, and determining which parties a bar-exam plaintiff can sue for a single injury.
• Prioritizing a step-by-step approach to agency and vicarious liability questions so you can quickly classify the actor, test for exceptions, and eliminate distractor answer choices under timed conditions.

MBE Syllabus

For the MBE, you are required to understand vicarious liability within negligence and the law of agency, with a focus on the following syllabus points:

• Vicarious liability of employers for torts committed by employees under the doctrine of respondeat superior.
• Factors used to distinguish an employee from an independent contractor.
• The meaning of “scope of employment,” including detours and frolics, coming-and-going, and dual-purpose missions.
• When intentional torts of employees are within the scope of employment.
• General rule of no vicarious liability for independent contractors, and the main exceptions (nondelegable duties, especially dangerous work, statutory duties, apparent agency).
• Employer direct liability for negligent hiring, supervision, training, entrustment, and retention.
• Vicarious liability for other agents, including apparent agents and business partners, and the effect of joint and several liability and indemnification between employer and employee.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally required for an employer to be vicariously liable for an employee's negligence?
   1. The employee acted outside the scope of employment.
   2. The employee was acting within the scope of employment.
   3. The employee was an independent contractor.
   4. The employee committed an intentional tort.
2. Which of the following is LEAST likely to make an employer vicariously liable for the torts of an independent contractor?
   1. The work involves a nondelegable duty.
   2. The work is especially dangerous.
   3. The employer exercised no control over the details of the work.
   4. The employer knowingly hired an incompetent contractor.
3. A delivery driver employed by a bakery negligently injures a pedestrian while making deliveries. The bakery is:
   1. Not liable, because the driver is solely responsible.
   2. Liable only if the driver was acting outside the scope of employment.
   3. Liable, if the driver was acting within the scope of employment.
   4. Liable only if the driver was an independent contractor.

Introduction

Vicarious liability is a central doctrine on the MBE. It allows a person or entity to be held liable for the torts of another even though the liable party did not personally act negligently.

Key Term: Vicarious Liability
Liability imposed on one party for the tortious conduct of another, based solely on the relationship between them (for example, employer–employee), not on the first party’s own fault.

The main setting is the employment relationship, governed by the doctrine of respondeat superior.

Key Term: Respondeat Superior
The rule that an employer is vicariously liable for torts committed by an employee while the employee is acting within the scope of employment.

The analysis on the MBE almost always runs in this order:

1. Is the tortfeasor an employee or an independent contractor (or some other type of agent)?
2. If an employee, was the tort within the scope of employment?
3. If an independent contractor, do any exceptions apply so that the principal is still liable?
4. Is there also direct liability based on the principal’s own negligence?

Employees vs. Independent Contractors

Employers are generally vicariously liable for torts of employees committed within the scope of employment, but not for torts of independent contractors. The label used in the contract (“independent contractor,” “consultant”) is not controlling; the key is the degree of control.

Key Term: Employee
A person whose work is subject to the employer’s control not only as to the result but also as to the means and details of how the work is performed (time, place, methods, tools).

Key Term: Independent Contractor
A person engaged to achieve a particular result, but who retains control over how the work is done; the hiring party controls only the ultimate result, not the manner and means of performance.

Control Factors

Courts (and the MBE) look at a cluster of factors. None is absolutely decisive, but together they indicate employee versus independent contractor:

• Who controls the details of the work day to day?
• Who sets hours and work schedule?
• Who provides the tools and equipment?
• Is the work part of the regular business of the employer?
• How is payment structured (salary/hourly versus by the job)?
• Is there a long-term relationship or a one-off project?
• Is the worker subject to the employer’s rules and discipline?

The more control the putative employer retains over how the job is done, the more likely the worker is an employee.

Borrowed or Loaned Employees

Sometimes one employer temporarily “loans” an employee to another.

• The question is: who had the right to control the employee’s work at the time of the tort?
• The borrowing employer can be vicariously liable if it assumed control over the details of work, even though the general employer still pays the salary.

MBE questions may ask which employer is vicariously liable. Focus on who directed the specific task during which the negligence occurred.

Scope of Employment

Vicarious liability applies only when the employee is acting within the scope of employment.

Key Term: Scope of Employment
Conduct of an employee that is of the kind the employee is employed to perform, occurs substantially within authorized time and space limits, and is motivated, at least in part, by a purpose to serve the employer.

Important considerations:

• Type of conduct: Is the employee doing the kind of work they were hired to do (driving a delivery route, serving customers, operating machinery)?
• Time and place: Did it occur during working hours and in the general area of work?
• Purpose: Was the employee at least partly motivated to benefit the employer, even if also serving personal interests?

Detours vs. Frolics

The classic MBE issue is distinguishing a minor deviation from a major departure.

Key Term: Detour
A slight or foreseeable deviation from the employee’s assigned route or tasks, still considered within the scope of employment.

Key Term: Frolic
A substantial deviation from the employee’s assigned work for personal reasons, outside the scope of employment.

• Detour (short stop to buy coffee while on a delivery route): employer remains vicariously liable.
• Frolic (driving 20 miles out of the way for a purely personal errand, suspending work): employer is not vicariously liable until the employee returns to the employer’s business.

On the MBE, look at:

• Distance and time away from the assigned route.
• Whether the deviation is reasonably foreseeable in the course of the job.
• Whether the employee had resumed the employer’s business at the time of the tort.

Coming-and-Going and Dual-Purpose Trips

General rule: commuting to and from work is not within the scope of employment (no vicarious liability). This is sometimes called the “coming-and-going” rule.

Exceptions are often tested:

• If the employee is on a special errand for the employer on the way to or from work (e.g., picking up supplies), the trip may fall within the scope.
• If the trip serves both personal and business purposes (dual-purpose), courts often treat it as within the scope if the business purpose is substantial.

Intentional Torts

Intentional torts are usually outside the scope of employment, but there are important exceptions.

Employers are more likely to be vicariously liable when:

• The job naturally involves friction or force (bouncers, security guards, debt collectors).
• The intentional tort is motivated by a desire to serve the employer, such as protecting the employer’s property or enforcing rules.

If the employee’s motivation is purely personal (e.g., a purely personal grudge), the tort is more likely outside the scope.

Direct vs. Vicarious Liability

An employer can be liable in two distinct ways:

Key Term: Direct Liability
Liability based on the employer’s own negligence (such as negligent hiring, training, supervision, or entrustment), rather than simply on the relationship with the employee.

Examples of direct negligence:

• Hiring an obviously unqualified or dangerous driver.
• Failing to supervise an employee handling hazardous equipment.
• Retaining an employee despite known dangerous propensities.
• Negligently entrusting a dangerous instrumentality (like a vehicle) to an incompetent person.

Direct liability and vicarious liability can coexist. The plaintiff can usually sue both the employee and employer, and both can be held jointly and severally liable.

Key Term: Joint and Several Liability
When two or more defendants are each liable for the entire amount of an indivisible harm; the plaintiff may recover all damages from any one of them.

If the employer pays the judgment because of vicarious liability, it may seek reimbursement from the employee.

Key Term: Indemnification
A right of a party held vicariously liable (such as an employer) to recover from the party who was primarily at fault (such as the negligent employee) the amounts paid to the plaintiff.

On the MBE, indemnification questions often arise where the employer is sued alone; the employer remains liable to the plaintiff, but may later seek indemnity from the employee.

Liability for Independent Contractors

General rule: No vicarious liability for the torts of independent contractors.

The rationale is that the hiring party does not control how the work is performed. However, the hiring party can still be directly liable for its own negligence—for example, negligent selection of a clearly incompetent contractor.

The MBE focuses on important exceptions, where vicarious liability DOES apply even though the tortfeasor is an independent contractor.

Key Term: Nondelegable Duty
A duty that the law treats as so important that the responsible party cannot escape liability by delegating performance to an independent contractor.

Common nondelegable duties:

• Duties to keep premises reasonably safe for business invitees (e.g., a store’s duty to keep floors safe for customers).
• Statutory duties imposed on the land possessor or business operator (e.g., certain safety regulations).
• Work that is especially dangerous (activities carrying a special, recognizable risk of harm even when reasonable care is used—such as blasting with explosives).

If the harm arises from the nondelegable duty or especially dangerous activity, the hiring party (e.g., property owner, business) may be vicariously liable for the independent contractor’s negligence.

In addition, the hiring party may be liable under the doctrine of apparent agency.

Key Term: Apparent Agency
A form of agency liability where a principal is treated as if it employed an agent because it held the agent out as an employee and a third party reasonably relied on that representation.

Apparent agency requirements typically include:

• The putative principal (e.g., hospital) makes manifestations that would lead a reasonable person to believe the actor is its employee (name tag, signage, uniform, inclusion in marketing).
• The plaintiff relies on that appearance (chooses the provider or services based on the apparent relationship).
• The agent’s negligence occurs in providing those services.

Hospitals and doctors are a classic MBE context: even if the doctor is labeled an independent contractor, the hospital can be vicariously liable under apparent agency if patients reasonably believed the doctor was hospital staff.

Other Agency-Based Vicarious Liability

Although this article focuses on employers and contractors, other agency relationships appear on the MBE:

• Business partners: Each partner can be vicariously liable for torts committed by another partner in the ordinary course of the partnership business.
• Principal–agent generally: When an agent (whether employee or not) acts with actual or apparent authority in conducting the principal’s business, the principal can be liable for the agent’s torts committed in the course of that authorized activity.

The core theme is the same: liability flows from control and representation—who is directing the actor and who has held the actor out as their representative.

Worked Example 1.1

A restaurant hires a waiter as an employee. While serving customers, the waiter negligently spills hot coffee on a patron, causing burns. Is the restaurant liable?

Answer:
Yes. The waiter is an employee. Serving coffee to customers is exactly the kind of work he was hired to do, occurring during work hours on restaurant premises and intended to benefit the employer. The act is within the scope of employment, so the restaurant is vicariously liable under respondeat superior.

Worked Example 1.2

A homeowner hires a licensed electrician (an independent contractor) to rewire the house. The electrician negligently causes a fire, damaging the neighbor’s property. Is the homeowner liable to the neighbor?

Answer:
Generally no. The electrician is an independent contractor, and rewiring a house is not especially dangerous when done with reasonable care. The homeowner’s duty to neighbors regarding the wiring work is ordinarily delegable, so there is no vicarious liability. However, if the work involved especially dangerous methods or the homeowner negligently hired an obviously incompetent electrician, the homeowner could be liable—either vicariously under a nondelegable duty or directly for negligent selection.

Worked Example 1.3

A delivery driver employed by a florist detours to run a personal errand and, while doing so, negligently injures a cyclist. Is the florist liable?

Answer:
It depends on the extent of the deviation. If the errand was a minor, foreseeable deviation (a detour), such as stopping briefly at a nearby store while staying generally on the delivery route, the driver remains within the scope of employment and the florist is vicariously liable. If the driver abandoned deliveries for a substantial personal mission far away from the route (a frolic), the florist is not liable for the accident occurring during that frolic.

Worked Example 1.4

A pizza shop sends its employee to deliver pizzas. On the way, the employee stops at a bar, drinks for two hours, then drives toward a friend’s house (not on the route) and negligently injures a pedestrian. Is the pizza shop vicariously liable?

Answer:
Likely no. The employee substantially departed from the delivery route for a purely personal mission (drinking and visiting a friend). This is a frolic, outside the scope of employment. The employer would not be vicariously liable unless and until the employee had returned to the delivery route and resumed serving the employer’s interests.

Worked Example 1.5

A supermarket hires a janitorial company (independent contractor) to clean its aisles at night. An employee of the janitorial company negligently leaves a puddle of soapy water. A customer slips and is injured. The customer sues the supermarket. Can the supermarket be liable?

Answer:
Yes. Keeping the premises reasonably safe for business invitees is a classic nondelegable duty. Even though the cleaner is an independent contractor, the supermarket cannot avoid liability by delegation. The supermarket can be held vicariously liable for the contractor’s negligence toward customers.

Worked Example 1.6

A hospital contracts with a surgeon as an independent contractor. The surgeon wears a white coat with the hospital logo and is advertised on the hospital’s website as part of its “surgical team.” A patient chooses the hospital and surgeon based on the hospital’s marketing. The surgeon commits malpractice. The hospital asserts that it is not liable because the surgeon is an independent contractor. Is the hospital vicariously liable?

Answer:
Very likely yes under apparent agency. The hospital’s manifestations (logo, marketing, holding the surgeon out as part of its team) reasonably led the patient to believe the surgeon was a hospital employee. The patient relied on those manifestations in choosing the surgeon. Under apparent agency, the hospital can be treated as an employer for vicarious liability purposes, despite the independent contractor label.

Exam Warning

On the MBE, do not assume that someone called an “independent contractor” is actually treated as one. Look for facts about control: who directs the details of the work, provides tools, sets hours, and supervises performance. Likewise, do not stop after identifying an independent contractor—always check for nondelegable duties, especially dangerous work, and apparent agency.

Revision Tip

When you see a question about an employer’s liability for someone’s negligence, move through these steps:

1. Classify the tortfeasor: employee, independent contractor, or other agent (partner, apparent agent).
2. If an employee, analyze the scope of employment (detour vs. frolic; coming-and-going; dual-purpose; intentional tort).
3. If an independent contractor, ask whether a nondelegable duty or apparent agency applies.
4. Consider whether the employer might also be directly negligent in hiring, supervision, or entrustment, and remember joint and several liability and indemnification.

Key Point Checklist

This article has covered the following key knowledge points:

• Vicarious liability (respondeat superior) holds employers liable for torts of employees committed within the scope of employment.
• The key distinction between employees and independent contractors is the degree of control over how the work is performed; labels are not dispositive.
• Scope of employment analysis turns on the type of work, time and space limits, and purpose to serve the employer; minor detours are within scope, but substantial frolics are not.
• Commuting is generally outside the scope of employment, but special errands and dual-purpose trips may bring conduct within the scope.
• Employers are usually not vicariously liable for intentional torts, except where force is a normal part of the job or the employee is acting to serve the employer.
• Employers may be directly liable for their own negligence in hiring, training, supervising, retaining, or entrusting dangerous instrumentalities.
• Employers are generally not vicariously liable for independent contractors, but may be liable when a nondelegable duty is involved, the work is especially dangerous, or apparent agency leads a plaintiff to rely on the principal’s representations.
• Business partners can be vicariously liable for torts committed by other partners in the ordinary course of the partnership business.
• When both employer and employee are liable, each may be responsible for the entire judgment under joint and several liability, and the employer can seek indemnification from the employee.

Key Terms and Concepts

• Vicarious Liability
• Respondeat Superior
• Employee
• Independent Contractor
• Scope of Employment
• Detour
• Frolic
• Direct Liability
• Nondelegable Duty
• Apparent Agency
• Joint and Several Liability
• Indemnification