Actions of Third Persons 1

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There are certain situations where the defendant may be held liable for the actions of a third person if the defendant had control over either the person who committed the act of negligence or the object with which the act was committed. We will discuss three instances of liability for the actions of a third person in this chapter and three in the following chapter.

Bailment

A bailor of chattels is someone who owns or possesses personal property and has the right to control the use of the chattel. A Bailee is someone who borrows or rents personal property from a bailor.

There are two situations in which a bailor will be liable for the acts of the bailee:

1. The bailor will be held directly liable when the bailee’s wrongful conduct is committed in the bailor’s presence.
2. Even if the tortious or negligent act has been committed outside the bailor’s presence, the bailor will be liable if he has failed to exercise reasonable care in selecting the bailee. In other words, if the bailor is not mindful of whom he lends the chattel to, he may be held liable if the bailee commits a tortious or negligent act. For example:

Ferdinand, a bailor, lends Chris his boat. At the time Ferdinand loans Chris the boat, Chris is drunk. Chris drives the boat while drunk and runs over Hernando in the middle of the river. Hernando can sue Chris, but he can also sue Ferdinand for lending the boat to Chris while Chris was drunk. As the bailor of the boat, Ferdinand has the right to control the boat and the responsibility, to make sure he is not lending his boat to someone who is drunk. Because he failed to exercise reasonable care in selecting a bailee, Ferdinand can be held liable for Hernando’s injuries.

See Mitchell v. Churches, 206 P. 6 (Wash. 1922).

However, there is no liability where there is no right to control. Thus, if Ferdinand had no right to control the boat, Hernando could not sue him. See Fuller v. Standard Stations,, 250 Cal. App. 2d 687 (1967). For Example:

Ferdinand is a car salesman. Chris comes into Ferdinand’s dealership and buys a car. Chris is drunk at the time of the purchase and drives the car off the lot in a state of inebriation. Chris then hits Hernando with the car. In such a situation, Ferdinand will not be held liable for Hernando’s injuries. Here, Ferdinand is a seller of the car, and he has no right to control the use of the car after he has sold it.

Similarly, individuals are generally not liable when their property is stolen and then used to commit a tort or negligence. Thus, if Chris had stolen Ferdinand’s car and hit Hernando while driving the car drunk, Hernando could not sue Ferdinand. 

The general rule is that a bailor who is not negligent and has exercised reasonable care in the selection of his bailee is not liable for negligence or intentional torts inflicted by the bailee outside the bailor’s presence. However there is an exception to this rule as well, which involves driving cars. Under this exception the bailor is held vicariously liable for the torts committed by the bailee. 

This exception is called the Family Purpose Doctrine. This doctrine holds that a bailor of a car is liable for injuries resulting from the bailee’s negligence (even for negligence outside the bailor’s presence) if the bailee is a member of the bailor’s immediate family and is driving with the bailor’s express or implied permission. See Nelson v. Johnson, 599 N.W.2d 246 (N.D. 1999). For example:

Michael lends his brother Scottie his car for the afternoon. Scottie negligently drives the car through the front window of a McDonalds and injures several of the patrons. Despite the fact that Scottie committed his act of negligence outside of Michael’s presence, Scottie is a member of Michael’s immediate family and he is driving the car with Michael’s express permission. Thus, the patrons of the McDonalds can sue Michael directly for their injuries.

Some jurisdictions have adopted a law even broader called the “Permissive Use Statute", which essentially takes the family purpose doctrine one step further. The Family Purpose doctrine allows the plaintiff to sue only if the negligent bailee was a member of the bailor’s immediate family. The Permissive Use statute allows the plaintiff to sue a bailor for damages caused by the negligence of anyone he has lent the car to, so long as the bailee is driving the car with the bailor’s express or implied consent.

Finally, in addition to whatever liability a bailor may have for the negligence or tortious conduct of a bailee, the bailor himself owes certain duties to the bailee and third persons as to the safety of the property he lends out. Therefore, where the bailee was using the property   in a proper manner but the property itself was defective, the bailor may be liable to third persons and to the bailee himself. For example:

Michael lends his car to Scottie. The car has defective brakes. Scottie is driving the car with due care but, because of the defective brakes, he cannot avoid hitting Phil. In such a situation both Phil and Scottie may sue Michael for negligence because Michael owed Scottie and third persons a duty as to the safety of the car. Because Michael breached that duty by lending Scottie a car with defective brakes, Michael can be sued for negligence

The second instance where defendant can be held liable for the negligence or torts of a third person is where the defendant has a master-servant or employer-employee relationship with the third person.

Liability can attach in two different ways.

1. There are instances where, if an employee commits an intentional tort or act of negligence within the scope of his employment, the employee’s act can be imputed to the employer so that the employer is liable for the actual act committed by the employee. This is called the doctrine of “Respondeat Superior”.
2. There are instances where an employee’s act cannot be imputed to the employer but plaintiff can sue the employer based on the employer’s own negligence. The plaintiff can do this under two possible theories:
   1) failure to control acts of employees and
   2) negligent hiring.

See J. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391 (Va. 1988).

As far as the failure to control the employee’s acts goes, an employer owes a duty of care to control the conduct of his employees while they are in his presence. Therefore, if an employee’s tortious or negligent act was committed in the employer’s presence, the employer can be held directly liable for negligence. As for negligent hiring, an employer can be held liable for the tortious , negligent or criminal actions of his employee if the employer should have reasonably foreseen such tortious action by the employee. For Example:

Lyle, the owner of a cleaning company, hires Eric, a convicted burglar, onto his cleaning crew. While cleaning a client’s house, Eric steals some valuable jewelry. Under these circumstances, the plaintiff homeowner may sue Eric’s employer, Lyle, because Lyle should have foreseen that his ex-convict employee would commit another act of burglary.

As we mentioned, under the doctrine of Respondeat Superior, an employer can be held vicariously liable for any tortious or negligent acts committed by an employee so long as those tortious or negligent acts were committed within the scope of the employee’s employment. This rule applies whether the acts were committed in the employer’s presence or not. The crucial issue in invoking respondeat superior is determining whether or not the employee’s actions were committed within the scope of his employment (whether or not the employee’s actions were committed while he was doing his job). Employers are not liable for their employees’ tortious or negligent actions if the actions were committed outside the scope of the employees’ employment. See Christensen v. Swenson, 874 P.2d 125 (Utah 1994). Therefore, if the employee commits a tort or an act of negligence while pursuing a private objective, the employer cannot be held liable. Here are two examples:

1. Jared is a delivery boy for a local pizza shop. While driving to a delivery, Jared pulls into a local sandwich shop to buy lunch. While pulling into the parking lot, Jared loses control of his car and injures Clay. In such a circumstance it is arguable that this will be considered within the scope of Jared’s employment. If he did not have to alter his driving route to pick up his sandwich and the stop was only momentary, this will most likely be considered within the scope of Jared’s employment and Clay will be able to sue Jared’s employer for negligence.
2. Jared is a delivery boy for a local pizza shop. On his way to a delivery, Jared drives ten miles out of the way to stop at a local casino and play a few hands of black jack. On his way back from the casino, Jared hits Clay with his car. In such a circumstance, Jared is clearly on a “frolic and detour” that has nothing to do with his employment. In such a case Clay will be able to sue Jared himself, but will be unable to sue Jared’s employer.

Please note that intentional torts committed by an employee may be considered within the scope of employment if the employee’s job description involves the use of physical force on others in order to further the employer’s interests. Thus, the intentional torts of body guards or bouncers can be considered within the scope of their employment because it is within their job descriptions to use physical force. 

There are certain circumstances where the employer can be held liable for the torts committed by the employee even if the employee is immune to liability. For example:

Romeo, a bricklayer, is working on a construction site. Romeo’s wife comes to bring her husband lunch and, while she is standing under Romeo’s workplace, Romeo negligently knocks a palate of bricks off the wall he is working on. The bricks fall and injure Romeo’s wife.   Because of inter-spousal tort immunity, Romeo’s wife will not be able to sue Romeo for negligence. However, Romeo’s negligence was committed within the scope of his employment. Thus, while the wife cannot sue her negligent husband, she can sue her negligent husband’s employer under the theory of respondeat superior.

The third instance in which a defendant can be held liable for the actions of a third person involve independent contractor cases. The difference between an employee and an independent contractor hinges on how much control the principal has over the agent. Typically an employer has much more control over his employee than he does over an independent contractor.

An employer may be held directly liable for the torts of an independent contractor if the employer has failed to exercise due care in selecting a competent contractor. Please note this is not vicarious liability. This is liability imposed for the employer’s own negligence. Thus, to use an old example, if a cleaning company owner hires an ex-convict as an independent contractor and that ex-convict steals from a client while cleaning their house, the client can sue the employer for not exercising due care in selecting a competent contractor.

As far as respondeat superior is concerned, the general rule is that an employer will not be held vicariously liable for the negligent or tortious acts of an independent contractor even if that conduct is done within the scope of the independent contractor’s employment. The reason for this is that the employer really has no control over the independent contractor. If the independent contractor were an employee, the employer would have much more control over him and respondeat superior would apply. 

However, there are two exceptions to the general rule:

(1) The first exception involves non-delegable duties. If an employer’s duty is non-delegable so that he cannot place the responsibility for fulfilling that duty on someone else, the employer will be liable if he hires an independent contractor to perform that duty and the independent contractor acts negligently. 

There are several non-delegable duties worth mentioning here. It is generally recognized that a car owner is under a duty to keep his car in a safe condition, and, because of the risk of harm involved in driving cars, many jurisdictions consider this duty to be non-delegable. For example: 

The brakes on Geeves’ car are defective. He takes the car to a reliable garage to have the car fixed. The garage does a bad job fixing the brakes and Geeves gets into an accident. In such a situation, Geeves may be held liable for the injuries he causes even though he hired a garage to fix his car and even though he had no ability to fix the car himself or make sure the work was done correctly. The duty to maintain the car is non-delegable so that even though Geeves did everything he could to make sure the car was safe, he will be held liable if the car is not safe. 

This may seem unfair and even unreasonable but, because of the risks of harm associated with driving cars, the law has deemed the maintenance of car safety non delegable.

A second non-delegable duty is the duty to keep property safe for business visitors. For example:

The theater notices that there is ice on the stairs at the entrance to the theater. They hire a contractor to remove the ice and the contractor does a poor job. A patron of the theater slips on the ice and hurts himself. In such a situation the theater can be held liable for the injuries. It is considered a non-delegable duty to keep property safe for business visitors, and thus, although the theater did what it could to have the ice removed, they will be held liable.

Other duties deemed to be non-delegable include the duty to provide employees with a safe place to work and the duty of a carrier to transport his passengers carefully.

(2) The second exception to the rule regarding liability for the acts of an independent contractor is where dangerous activities are involved. If the activity involved is inherently dangerous so that the employer should realize that it involves a greater than average risk of harm, the employer cannot avoid liability by hiring an independent contractor to perform the activity. For example:

A construction company needs to remove a rock formation in order to make way for a road that it is building. The construction company hires an explosives expert to remove the rock formation. When the explosive expert detonates his blasting caps, rock shards fly through the air and hit Paul in the head injuring him severely. In such a situation, Paul will be able to sue the construction company because the activity of using blasting caps is so inherently dangerous that the construction company should have realized that it involved a greater than average risk of physical harm. Therefore, the construction company will not be able to avoid liability.

It should be noted that if a case comes within the non-delegable duty or dangerous activity exception, the employer will be held liable even if the independent contractor has agreed to assume all risks in connection with his performance. This assumption of risk on the part of the independent contractor will not insulate the employer from liability. However, what it will do is allow the employer to sue the independent contractor for whatever amount of money the employer was forced to pay to the plaintiff.

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