Vicarious Liability - Essay Example

Vicarious Liability Introduction This form of liability is a joint liability in both persons; one who committed the tort and the employer can be sued. The liability here is imposed on person B for the torts of another person A where B as a person has not committed any legal wrong. This form of liability occurs when the relationship between the tortfeasor and person B in the manner that person B gave person A some form of responsibility. In the modern jurisdictions vicarious liability cases have been reported to take place in relationships that involve employers and their employees where the subject of the relationship is always work related. Other relationships include those among families, joint ventures as well as the relationships between attorneys and their clients (Samaha 124). Ethical and legal justifications of Vicarious Liability Among many other factors that make vicarious liability legally and ethically justified will include the proof of the following three main elements. First, the tort must have been committed and the plaintiff is able to prove this. Secondly, the person who has committed the tort must have been an employee and lastly, the tort must have been committed during the course of employment. This is because Vicarious Liability has become a practical tool over time with its entrenchment in the common law. This is despite the difficulty faced in proving both its historical and jurisprudential origin (Samaha 144). Its first ethical justification is the fact that it helps in compensating the victims as it allow liability to be imposed on a party who is likely to be insured in a case that the tortfeasor may not be in the position of raising the resources to meet the claim. This is based on the reason that the employers in the position resource wise or financially to meet such claims either because they have greater resources or are insured. However this doctrine is a form of strict liability with the impact of causing undue financial burden to a business hence reducing the economic ability of an enterprise while on the other hand the ideas of corrective justice are not employed well. The second ethical legal aspect is that of control; it is believed that the employer should be vicariously liable due to the fact that he has the control over the activities of their employees. In as much as control may act as a justification it has to be in conformity with the other justification as control alone is never tenable. The third justification is deterrence which comes in two broad forms: one focused on the employer and the other focused on the employee. The former based its argument on the positioning of larger economic units and their abilities to reduce accidents through efficient organization and discipline of staff; therefore, legally, and employer can be made vicariously liable in the name of accident reduction. The former case is based on the fact that employees are not well endowed with wealth to take care of the costs of their liabilities and in other instances the tort victim is not able to pinpoint the particular employees responsible and hence employees will be inadequately deterred to committing tort hence employers are held vicariously liable to meet this deterrence gap as they have the ability to influence the behaviors of their employees ((Lockwood 212). The other justification is that of loss spreading which allows liability to be fixed on the employer with such burdens spread out among his clients and insurers as argued by Traynor J. in Escola v. Coca-Cola Bottling Co., it was argued that the cost of injury, loss of time and health may be so dreading to the injured and at the same time needless as the cost can be insured by the employer and later distributed among the members of the public as a cost of doing business. The other justification is that of enterprise liability with the first approach based on the reciprocity between benefit and burden with the second case justifying a payment by employers as they are the ones responsible for the creation of the risks that results on the injuries on the plaintiffs as in Bazley Case. Appropriate justifications in the modern world It is important to note that most of the justifications is their sole focus on the relationship between the employer, the tort victim and the objectives which would be achieved with the imposition of the liabilities as opposed to creating the clear focus to be between the employee and the employer to aid in getting a compelling justification. The applicability will be realized due to the implied promise of the employer of indemnification of the employee of harms which include legal liability suffered by the employer during the conduct of the business. Therefore, in the modern day jurisdiction, control, deep pockets, reciprocity and fairness play a critical role in justifying vicarious liability (Lockwood 152). A more comprehensive form before liability is imposed is a consideration of a mix of all the mentioned policies due to the hindrances exhibited by each of the policies. Hence, the Mixed Policy as a more conclusive justification for Vicarious Liability as opposed from the single handed approaches of those explaining the doctrine. For example, in the Case Trahan-Laroche v. Lockheed Sanders, Inc this apparently involved plaintiffs, Rita Trahan-Laroche and Lucien Laroche. Respondents’ deserve the right of suing the defendant on the basis of respondeat superior as well as negligent supervision. In the case it was argued that Maimone was acting within the scope of employment at the time of the accident. As pointed out earlier, the elements enabling a justification of vicarious liability are clear and distinct. Viewed from the aspect of employer-employee relationship, the employee is working for and employer at fixed benefit that is the wage. The employer has the responsibility of compensating the employee for the harm or loss experienced during the course of the employers’ business. This is partly why the case Trahan-Laroche v. Lockheed Sanders, Inc. may to an extent untenable. This is because at the time the track got involved in the accident the employee was on his way to his farm. From this perspective, legal liability is covered for compensation however simple such a mistake is given human beings are prone to error (Giliker 98). In addition, liabilities for intentional errors would also be covered most so in the event the loss occurred out of a situation of friction created by the employer with the employee’s actions classified as acts of good faith in the contract of employment. Therefore, the tort committed while in employment can be indemnified by an asset held by the employee at the time on behalf of the employer through the transfer of the employee’s right (Leigh 169). This is because there is yet to be found a comprehensive jurisprudential basis for imposing vicarious liability giving a hand to the application of indemnification theory to vicarious liability Conclusions Vicarious liability is therefore s derived in the following manner: when the employee commits a tort in the course of employment, the plaintiff or the harmed, victim is entitled to institute and action against the assets of the employer. The claim is as defended by the justifications seen of control, compensation, deterrence, loss-spreading and enterprise liability not forgetting the overall mixed policy. Most of the cases that have always failed have failed because of the failure to prove the close connection and the fact that the principle created a foundation upon which the wrong was committed (Bell 15). Therefore, a response that must always be put forward is that of whether there is a significant connection between the employment enterprise and the wrongful acts justifiable in terms of fair allocation of risks and deterrence. Works Cited Bell, John. "The Basis of Vicarious Liability." The Cambridge Law Journal 72.01 (2013): 17-20. Print. Giliker, Paula. Vicarious liability in tort: a comparative perspective. Cambridge, UK: Cambridge University Press, 2010. Print. Leigh, L. H. Strict and vicarious liability: a study in administrative criminal law. London: Sweet & Maxwell, 2002. Print. Lockwood, Graeme. "The widening of vicarious liability: implications for employers." International Journal of Law and Management 53.2 (2011): 149-164. Print. Samaha, Joel. Criminal law. 7th ed. Belmont, CA: Wadsworth/Thomson Learning, 2002. Print. Read More