In this article we will explain the vicarious liability of an employer for the actions of an employee in Illinois. We will discuss both the doctrines of respondeat superior and negligent hiring.
When an employee, acting within the scope of its employment, causes harm to another person, the employer is typically held liable for the employee’s conduct. Why? The two main reasons are as follows: (1) the employee is likely acting at the direction of his or her employer, and, therefore, the employer should share in the responsibility for the harm caused, and (2) the legal system’s goal is always to make the injured party whole again, or as close to whole as possible.
The doctrine of respondeat superior allows for employers to be liable for negligent acts or omissions (failures to act) by its employees within the course and scope of employment. The phrase (respondeat superior) is Latin and translates to “let the master answer.” Therefore, the employee must be performing for the benefit of the employer when the act or omission occurs. As you can see, in terms of the the employer’s liability for employees’ conduct, the employer is the “master” and therefore responsible for the actions of its “apprentice.” The issue becomes determining what exactly is included in “within the scope of employment”?
An employee’s conduct falls under vicarious liability for the employer if it is the kind which he or she is employed to perform, is within the authorized limits of time and space, and is performed for the purposes of serving the employer.
Here are a few examples of actions “within the scope of employment”:
Example 1: Pizza Company hires Driver to deliver pizzas. Pizza Company gives Driver a company car with which to deliver said pizzas. While en route to delivering pizzas, Driver rear ends another car, causing the driver of that car to suffer whiplash. Pizza Company will likely be liable for the injuries to the injured driver as Driver (Pizza’s employee) was in the process of delivering pizzas for Driver’s employer.
Example 2: Pizza Company hires Driver to deliver pizzas. Pizza Company gives Driver a company car to deliver said pizzas. After delivering all orders, Driver is to return to Company immediately. However, Driver goes out of his way on return trip to stop at a gas station and fill his tank. When pulling out of the gas station parking lot, Driver hits another car. Pizza Company is likely liable as, although Driver was supposed to return to Pizza Company, his action is within the scope of his employment as the car needs gas in order to deliver pizzas.
Example 3: Same situation as Example 2 but instead of making a side trip to the gas station, Driver makes a side trip to a friend’s party. Driver drinks a few alcoholic beverages in the short period of time he is at the party and departs. Driver hits a parked car in his state of inebriation. Pizza Company is likely not liable for the damage to the parked car.
The different outcomes in examples 2 and 3 would be due to two concepts called “detour” and “frolic.” A detour is a deviation from the employer’s instructions but done so in a manner to where the actions are still related to the employer’s instructions. A frolic is the employee acting in their own capacity in a manner unrelated to the employer’s instructions.
As these terms relate to the above examples, Driver in Example 2 performs a detour when he stops to refill the gas tank as, while the employer instructed him to return immediately after his last delivery, the vehicle still needs fuel to operate and deliver additional pizzas. In Example 3, Driver’s decision to stop at the friend’s party has no relationship to the employer’s instructions at all and, consequently, employer won’t be liable for the damages caused in that example.
Companies can also be held vicariously liable for the conduct of their employees when the company negligently hires the employee. As opposed to respondeat superior, an action in negligent hiring results from the employee’s conduct outside the scope of his or her employment. A negligent hire is usually the result of the company failing to perform the necessary background checks on an individual during the hiring process.
An example of negligent hiring include a company hiring an individual despite their violation of a criminal conduct statute. The employer’s carelessness in the hiring process subjects them to liability.
For example, if a company catering to young children hires an individual convicted of sexual assault on a child and part of the job duties require the individual to interact with children, the employer can be subjected to liability because they’re responsible for the individual having access to the children.