Vicarious liability and respondent superior. Both are legal terms with a simple meaning. They both mean to some degree to hold someone else liable for the actions of a person, most often used to hold an employer liable for the acts of the employee. These are tried and true principals within the law. The general test of determination of whether to hold an employer liable for the acts of the employee comes down to if the employee was acting within the scope of their employment. The Courts have provided many decisions which aide in determining what would be considered as “within the scope of employment”. Recently the Virginia Supreme Court has decided a case and given some more clarification into what is considered “within the scope of employment”.
The case of Our Lady of Peace Inc. v. Morgan the justices were split five to two. Two of the majority Justices have expressed a view which, if followed in the future, could potentially upset what is considered within the “scope of employment” moving forward.
Our Lady of Peace is a case whose facts are largely undisputed and largely disturbing. A nursing assistant at a nursing home molested and raped one of the 85 year old residents. The Plaintiff sued the nursing home saying they were vicariously liable for the acts for the employee. The trial Court Judge made the determination that the employee was within the scope of his employment. The nursing home appealed that saying the jury should have decided if the aide was within the scope of his employment. The majority came out to state that a jury should have considered the facts of if the employee was within the scope of his employment, and a judge should not have ruled on that issue.
Two of those justices however felt that in close cases the jury should decide, but then state that “[i]t is hard to imagine, however, a set of circumstances under which a rape perpetrated by an employee would not belong firmly in the camp… for which the employer has no legal responsibility”. Thereby saying that cases of rape by an employee would never be a close case for a jury to decide, but side with the majority because they were “[c]onstrained by [their] precedent”
Traditionally an employee’s personal motives and the act performed are factors of the analysis for if they were within the scope of their employment, but they are not the end of the story. Based on the case law to date the primary question has focused on if the employer has placed the employee in the position to do that type of act. In other words, when an employee commits a wrongful act that injures others, they are generally not doing that with the intent to further the employer’s interest – and generally, the employer is not held responsible.
Currently the prior precedent largely remains undisturbed, however a true change to what an employer may be held liable for could be seen before too long should the opinion of the other justices is followed in the future.
If you are a small business and have questions over your liability for employee acts, or small business legal questions in general, the small business attorneys of Winslow & McCurry can help. To set up an initial consultation you can reach us at (804) 423.1382 or at info@wmmlegal.com.
