Vicarious liability is a class of liabilities that deals with transfer of liability from one party to another. Vicarious liability operates under the doctrine of respondent superior, which puts legal responsibility to a superior for illegal behaviour or acts of the subordinates. Third parties are thus supposed to be ethical in their duties to avoid transfer of liability. In the same way, vicarious liability puts legal responsibilities on third parties with the duty, responsibility, or right to monitor and direct their juniors who act illegally or commit a crime. Vicarious liability can thus take the form of employers’ liability, parental liability, principals’ liability, corporations in tort liability, and continued liability, and indemnity of employees. All these liabilities have ethical issues to be considered during application. In various circumstances, it may be legal, but unethical to apply a particular vicarious liability.
As aforementioned, vicarious liability operates under the doctrine of respondent superior and this doctrine puts legal responsibility to a superior for illegal behaviour or acts of subordinates. In essence, vicarious liability involves transfer of liability from one party to another. However, various ethical and legal justifications surround the application of vicarious liability laws.
Ethical doctrines guide the society in judging between what is right and what is wrong. The questions raised here include questions on whether in the application of vicarious liability to employer due to liabilities caused by employees is ethical and whether the application of vicarious corporation torts is ethical when an employee involves himself or herself in deals that cause the company certain amount of liability. Another question is whether in the application of principals’ liability, it is ethical, especially when a person legalised to operate a machine; for example, a car, causes an accident and the owner is made liable by law. Others include whether it is ethical in the application of employee continued liability and indemnification when the owner of a learning institution is made liable to a liability caused by an independent contractor and the question of whether it is ethical to make parents liable for the liabilities caused by their truant children.
Ethical and Legal Justifications for The Doctrine of Vicarious Liability
Both employees and employers have raised various issues concerning ethical considerations in the application of vicarious liability in employers’ vicarious liability. In this doctrine, the employer is held responsible whenever his or her employees commit an act of omission or negligence in their line of duty. Therefore, it is questionable whether it is ethical to hold the employer liable for liabilities caused by his or her employees.
Under the respondent superior doctrine, as long as the employee was acting under the scope of his or her duties, the employer is held responsible for his or her negligence in the course of duty. Ethical considerations in such a case ask the question whether the employee was personally licensed to carry out the duty, whether he or she was trained on how to perform the task, whether he or she acted on negligence, and whether he or she followed the guidelines of performing the task. Therefore, it is unethical to hold the employer vicariously liable to liabilities caused by employees that are negligent in following the guidelines in their line of duty. It is also unethical to make the employer liable for omissions caused by an employee trained and licensed to carry out a particular duty; for example, a doctor in a private hospital who injects a patient with the wrong medicine should be held liable for the consequence since he or she is licensed to treat patients. Out of the difficulties in distinguishing whether the employee got into the liability while working for his or her own interest or for the interest of the employer, the court must separate detour from frolic.
In vicarious liability, detour occurs when an employee is carrying out the duties as directed by his or her employer or terms of employment. On the other hand, frolic vicarious liability occurs when an employee gets into a liability as he or she acts on his or her own light and interests. Such an employee should be held ethically liable for his or her actions. In case of a liability being committed by an independent contractor, the employer is not held responsible by law. Vicarious liability transfers all liability to the independent contractor immediately he or she signs a contract.
The contractor is thus liable for tortuous acts. However, ethics should guide the injured party to hold the contractor liable and not the proprietor if the contractor is licensed to do his or her work. Under the common law, a certain phrase in vicarious liability states that one who acts through other acts in one’s own interest. This view can be considered as ethical in the modern society where employers hide under the guise of employees. In most cases, employees are given instructions to carry out activities whose implications they do not know. For instance, a security guard who is instructed to lock out a particular person from accessing a premise without information about the legality of ownership by his or her employer may bar the legal owner of the same premise and be sued for obstruction and even trespass, which is unethical.
Both criminal and tort laws hold liable an employer who uses another person to commit a liability. The employers’ vicarious liability is applicable in the modern world; however, ethical considerations should be upheld. The question of whether it is ethical to hold the owner of an item responsible for a liability caused by another person who borrows or hires a machine discredits vicarious principals’ liability. Principals’ vicarious liability in common law holds that when dealing with automobiles like vehicles, the owner of a vehicle is held liable for a liability committed by another person that he or she loans it to under the vicarious liability doctrine. The principals’ liability operates under the premise that the owner is the proprietor and the operator is his or her agent. This scenario can only be ethical especially when a person loans a car to do a particular activity for the owner of the car. The principal owner cannot be ethically liable even if the driver were his employee. In fact, with the modern day car leasing business taking root, this vicarious liability has been scraped out since it is considered unethical today. The principals’ liability holds that the line-holder is held, under the law, as having a non-delegable duty towards the client. The principals’ liability also holds that the client is liable for disruption of peace in the process of repossession.
It is ethically wrong to hold the lender vicariously responsible by law for destruction of property and breach of peace during the process of repossession. It is also unethical for a borrower who fails to repay his or her loan or to clear instalments to be justified under vicarious liability. The lender is ethically right to repossess his or her property and not to suffer loss. Ethical issues have also been raised on application of vicarious liability of corporations in tort especially since companies cannot act on their own. Employees of a particular company can thus commit destruction and make the company liable under the law of tort. The question is whether intentional actions by employees that result in liability are ethical or not. Companies act through employees and it is ethical to hold employees liable for their actions in the modern day business world. Employees can hide under a company’s name to commit destruction, thus causing liability since the company will be held responsible under the vicarious liability laws. Ethics and state of mind of senior officers should also be right in order to avoid unnecessary liabilities.
In fact, regardless of whether the other officials of the company know about it or not, the liability lies on the company; for example, the case of Meridian Global Funds Management Asia Limited v. Securities Commission of (1995) 2 AC, 500. In this case, some senior officers of Meridian Global Funds Management Asia Limited used company funds to buy some shares. It was ruled that through the capacity of these officials acting in a good state of mind, the company knew about the venture. The same holds for employees who get into a liability while acting on behalf of their employer for example in the legal case of Armagas Limited v. Mundogas S.A (1986) 1 AC 717. The authority bestowed upon employees gives them the responsibility to act on behalf of the company. For example, it is ethically wrong, but legally right for a company’s financial manager who is authorised to enter contracts on behalf of the company to go on and hire services for his or her own interests thus putting the company in liability
Multiple ethical issues have also been raised on application of employees’ continued liability and indemnity in common law. In this vicarious liability, both the employer and the employee are liable for any harm that they cause in the course of their duty. Under the respondent superior, the employer is liable for the harm caused by his or her employees in the course of their duties. The ethical question raised here is on the circumstances when the employer can be held ethically responsible. The American law states that unless proven otherwise by another written law, the employee or the actor is held liable under employees’ continued liability law. Regardless of the actor acting on behalf of the employer, he or she is also ethically answerable to the law of tort.
Employees’ continued liability is thus applicable in the modern world since it considers both the employer and the employee and can indemnify one of the parties. For example, the employees’ continued liability and indemnity is currently adopted by all the states in the United States and many other nations across the world. However, the idea of indemnification happens in cases where either of the parties is sued. In such cases, ethical considerations are seen to have taken place. However, ethical indemnification can only be done at free will, but not through forceful means, as it happened in the case of Lister v. Romford Ice Cold.
Parents have an ethical responsibility towards their children and they are thus regulated under the vicarious liability in cases of tort of their children. The damage caused by children is transferable to the parents or guardians in vicarious liability. It is unethical for parents to neglect their role in parenting, hence damage caused by their children are vicarious to them. Ethically negligent parents in regard to their children; for example, one who fails to supervise or keep dangerous explosives or guns away from children, is vicariously liable to all damage that the children commit. This aspect is ethical since the transfer of liability that is committed by children is clearly spelt out under the vicarious liability on parental liability. Vicarious parental liability is applicable in the modern world especially with the increased child negligence and child crimes. However, it is unethical to hold a parent responsible for a crime committed by a child in the absence of the parent, for example at school.
Applications of The Doctrine of Vicarious Liability in the Modern World
Vicarious liability has a number of applications in the modern world, which have not changed for several decades. The determination of when a tort has been committed is one of the major functions of industrial courts. Therefore, the doctrine of vicarious liability ensures that there is taking of responsibility in the industrial courts, thus making it easier to identify the aggrieved parties and those to pay for the damages. Another application of vicarious liability is the maintenance of law and order in different sectors.
Since employers are aware of the consequences of vicarious liability, they train their employees on how to avoid it through adequate training, selection, and provision of the basic minimum working conditions. For employees, vicarious liability is not as safe for them as perceived. Most employees are warned of any vicarious liability that organizations may encounter in their hands, which means that they have to use caution in their interaction with clients. This move has led to improved service delivery with companies producing a better output compared to earlier years. Companies keep track of the performance of the companies through the mechanisms that have been set in place to avoid cases arising from vicarious responsibility.
The doctrine has also a number of applications in the modern courtroom with the legal system respecting its existence. A number of rulings on the same have also ensured that the parties are given a fair ruling. These rulings have been a landmark with the outcomes being used as a basis for the next rulings. One of the principles of the existence of vicarious liability is the assumption that the employer is rich, and thus can cater for the charges that are awarded against the organizations. This aspect has acted as deterrence for employees and employers, thus preventing some of the torts that were common before the introduction of the principle. Another way in which the doctrine is applied today includes the guaranteeing of responsibility where torts are committed in an organization by people who may not be necessarily known. Before the introduction of the doctrine, organizations could hide in the ability of the afflicted parties to establish employees that were responsible for the torts committed. Therefore, it would be difficult to establish the right culprits or punishment. With the introduction of vicarious liability, clients can single out the organizations that were involved and this aspect has created responsible organizations.
Another way in which vicarious liability is important in organizational management is the creation of working relationship between the employee and the employer. Employers have integrated themselves in the daily lives of the employees by ensuring that they have an enabling working environment and are in a position to deliver.
The above measures mean that the employer-employee relationship has improved over the last few years, with a portion of the success being attributable to the doctrine. However, some of the modern applications of the ethical and legal justifications of vicarious liability are not applicable in the present world. The assumption that the employer is the richest party in cases against clients may not be applicable, as some organizations are not as wealthy as the clients in the tort may purport them to be. Some may even be bankrupt and unable to afford the required fines. The assumption has also led to the emergence of a new type of clients that engage in vicarious liability to benefit financially. Therefore, they set out to make employees commit certain torts out of will to achieve their motives of compensation.
Over the years, there have been a number of court cases where the plaintiff was involved in the committing of a crime to benefit financially without any damages being found. Organizations have lost valuable money to these kinds of tricksters and some have ended up being sued by the organizations for defamation. In some of the instances, the decision is reversed where the employer is found to have no responsibility in the committing of the tort, especially where the mandate of the employee was not within the limits of the organization.
Another way in which the legal and ethical justification for the vicarious liability applies is the manner in which organizations can raise money and declare their wealth. Over the past decades, organizations could hold a large number of assets and finances without the knowledge of the public. With the introduction of vicarious liability, many organizations are cautious to announce and publish their financial resources. This element works as a tactic for discouraging any of the clients who may be interested in making claims based on vicarious liability. Some of the other applications of vicarious liability include the definition of roles in organizations.
In the current organizational structure, employees have specifically defined roles, which they are required to play in the companies, and these form the avenues within which vicarious liability is applicable. Therefore, employers have ensured that the roles of employees are specially defined to avoid litigations or any other legal implications as applied in vicarious liability. The application of vicarious liability is not new in organizations and for centuries, there has been an existence of a contract between the employee and the employer where the employer is held responsible for the actions of the employees. However, the doctrine has been adopted in the legal system, allowing the observed changes.