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Vicarious Liability in Private Contexts- Module 4 of 5

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Module IV: Vicarious Liability in Private Contexts

In certain circumstances, people can be vicariously liable for the misconduct of others even when such misconduct occurs outside of a formal employer-employee relationship. In this module, we will consider the extent to which: (1) parents can be vicariously liable for their children’s legally actionable misconduct; (2) automobile owners can be liable for the legally actionable misconduct of people to whom they give permission to operate their vehicle; and (3) people can be vicariously liable where they temporarily entrust possession of goods or services to another person (a relationship known as a “bailment”).

The Parent-Child Relationship

Parents may face civil and criminal liability for their children’s legally actionable misconduct, and state statutes typically delineate the circumstances in which parents may face civil or criminal liability for such misconduct.

Parents’ Civil Liability for Children’s Torts

 Although state laws vary concerning when, and to what extent, parents may face civil liability for their children’s misconduct, two standards predominate. In some states, parents may face civil liability for their children’s misconduct if they knew that the child was reasonably likely to cause harm.[1] In other states, parents may face civil liability if they knew that their child was reasonably likely to cause harm and if there was a nexus, or connection, between that knowledge and the specific misconduct that occurred.[2]

Under both standards, parental liability only extends to children’s intentional or willful acts. Parents are not be liable for injuries caused by accidental or careless conduct.[3] One commentator explains the general rule:

Most state laws impose civil liability for acts done with intent — “willful or malicious” acts, or those done “knowingly and intentionally.” These do not include pure accidents or behavior by children deemed too young to form the mental state needed for such deliberation. The unspoken purpose of many such laws is a hope that they will act as a deterrent against poor parenting, essentially scaring parents into paying attention.[4]

In circumstances where the intent requirement is satisfied, parental liability extends to compensating injured parties for property damages and, in many states, for personal injuries.[5]

Let’s consider two examples and examine how these principles are applied.

Example 1

Michael is a senior at Central High School and is nearing graduation. Michael’s parents decide to take a seven-day cruise to the Caribbean despite knowing that Michael has often abused alcohol and recently pled guilty to driving under the influence of alcohol. While his parents are on vacation, Michael schedules a party at his house for all graduating seniors and purchases large quantities of alcohol. After the party, Michael, who is visibly intoxicated, veers off the road and strikes the side of a house, causing significant damage. Michael’s parents are probably liable because they knew of Michael’s propensity to consume alcohol and, as such, should have known that Michael might engage in misconduct of this type while they were vacationing.

Example 2

Timothy, who is sixteen years old, has repeatedly damaged property both at his high school and at several neighbors’ residences. Timothy’s parents are aware of this behavior and have scheduled an appointment with a doctor to conduct a psychological evaluation. One evening, while on a date with his girlfriend, Timothy accidentally drives through a stop sign and strikes another vehicle, causing serious injuries to the driver. Timothy’s parents are probably not liable because Timothy did not act with culpable intent, and because Timothy’s parents were aware only of his propensity to cause property damage, not to engage in this type of misconduct.

Parents’ Criminal Liability for Children’s Crimes

Parents may be criminally liable for their children’s misconduct, although this is rare.  Typically, parents will only face criminal liability for their children’s misconduct in three circumstances:

Contributing to the delinquency of a minor. Most states have laws prohibiting parents from encouraging children to commit delinquent acts, such as actively enticing minors to steal or use drugs or alcohol or failing to ensure that their children go to school. Criminal acts committed by children who are not in school or who are high on drugs or alcohol can result in a charge of contributing to the delinquency of a minor for the parent.[6]


Poor parenting. Some states hold parents liable for poor parenting and, unlike those pertaining to contributing to the delinquency of a minor, poor parenting laws often specify which criminal acts violate the statute. For example, in Louisiana, parents can be criminally liable if a child is convicted of a felony; is a member of a known criminal street gang; possesses or has access to an illegal firearm, weapon, or explosive; is a known user or distributor of illegal drugs; or is habitually truant.[7]

Firearm statutes. Many states require parents to secure their guns and ammunition, with resulting criminal penalties if they fail to do so.[8]


Let’s consider two examples and examine how these principles are applied.


Example 1

Jack’s parents are passionate supporters of the Second Amendment and own many firearms, all of which are locked in a secure closet that cannot be opened without a specific key that only Jack’s father possesses. While at a recent gun show, Jack’s parents decided to purchase an AR-15, which is a lightweight semi-automatic rifle. Unfortunately, after a night of drinking, Jack’s parents left the AR-15 in the backyard. Jack, who has recently struggled with depression after his girlfriend ended their engagement, takes the AR-15, drives to his ex-fiancée’s home, and kills her. Jack’s parents may be criminally liable for homicide because they failed to store the AR-15 in a secure area, and, as a result, Jack was able to access the gun and commit a violent crime.


Example 2

Robin’s parents decide to hold a party at their home for their daughter and her friends before the high school prom. During the pre-prom party, Robin’s parents provide champagne and wine to the guests, and one of Robin’s friends consumes an unusually high amount of alcohol. While driving to the prom, Amy passes through a red light and strikes a pedestrian who is crossing the street. The pedestrian dies. Robin’s parents may be liable for the homicide because they knowingly served alcohol to an underage person and did so without proper supervision.

People Who Allow Others to Drive Their Vehicles

Motor vehicle owners who permit other people to borrow and operate their vehicles can be legally responsible for those peoples’ misconduct.  Liability is typically predicated on: (1) state-specific owner liability statutes; or (2) common law negligence.

Owner Liability Statutes

Many states have enacted owner liability statutes that “make car owners liable for accidents that are caused by the drivers of vehicles that they own.”[9] “Owner liability normally follows from the permissive use of a vehicle by the at-fault driver, ”when “the owner gives the borrower permission to use the car, or knowingly acquiesces in the use of the vehicle.”[10]

The primary reason for imposing liability on the owner is to ensure that an injured party receives compensation for the harm resulting from an accident. One legal commentator explains that “from a public policy perspective owner liability helps ensure that a person injured in a car accident will be able to recover compensation from a person who is both likely to be insured and . . . in a position to prevent the at-fault driver from operating the vehicle.”[11]


Even if a state has not enacted an owner liability statute, motor vehicle owners may still be liable if they negligently entrust their vehicles to other people. When a vehicle owner knows or has reason to know that the person entrusted with the car is not a safe driver and, nonetheless, allows the person to operate the car, the owner may be liable for injuries caused by the driver.[12]


However, the owner will ordinarily not be liable if the owner did not give the other person permission to operate the car. For example, if a person’s vehicle is stolen and then subsequently involved in an accident, the owner will probably not be liable for any resulting injuries.[13]


Let’s consider two examples to examine how these principles are applied.

Example 1

Michael’s best friend, Jonathan, who is a known alcoholic, asks Michael if he can borrow his car to pick up his daughter at the airport.  Michael agrees, and Jonathan takes the car. Before leaving for the airport, Jonathan stops at a local establishment and consumes three beers and two shots of vodka. On the way to the airport, Michael changes lanes without signaling and strikes another vehicle, resulting in a multi-car accident that leaves three motorists seriously injured. Michael is probably liable because he permitted Jonathan to operate the vehicle and acted negligently when entrusting his vehicle to a person that he had reason to know might drink and drive.

Example 2

Valerie drives to Cole’s Supermarket to purchase groceries for her family. While Valerie is shopping, two people enter the parking lot, break into Valerie’s car, and manage to hotwire the car. They speed away from the supermarket and, in their haste to escape undetected, accidentally strike two pedestrians that are walking to their car. Valerie is not liable because she never gave permission to anyone to operate her vehicle. However, if Valerie had negligently left her keys in the ignition or otherwise was negligent in allowing her car to be stolen, she might be liable.

Liability in Bailor-Bailee Relationships

      A bailor-bailee relationship exists “when personal property has been delivered by one person, the bailor, to another, the bailee, for a specific purpose beneficial to the bailee or the bailor, or both, with the understanding the property will be returned to the bailor after the purpose has been accomplished.”[14] Thus, to constitute a bailment, there “must be such a full transfer, actual or constructive, to the bailee as to exclude the possession of the owner and all other persons and give to the bailee, for the time being, sole custody and control thereof.”[15]

            Bailments consist of three categories. Service agreement bailments exist where people pay fees to third parties to protect their property. For example, paying a fee to park your car in a parking garage requires the owner of the garage to exercise reasonable care to protect your vehicle.[16] Constructive bailments exist where, despite there being no formal agreement, the circumstances require one person to protect another’s property. For example, if your roommate suddenly abandons an apartment you both share, you will likely have an obligation to protect whatever property your roommate left behind.[17] Gratuitous bailments exist where one person discovers lost or stolen property and entrusts it to a third party, such as the police, who must protect such property until the owner is found.[18]

            A bailment relationship imposes upon the bailee a duty to exercise reasonable care when possessing the bailor’s property, and, in most cases, the bailor will not be responsible for the bailee’s negligence.[19] The extent of the bailee’s duty depends on the type of bailment:[20]

According to one commentator:

In all bailment situations, the bailee has a minimum duty of care to ensure the safety of the property. A bailee who breaches or fails to uphold that duty can be held legally liable for damages . . . A higher standard of care is imposed upon a paid bailee. There's a lower standard of care imposed upon a bailee in a gratuitous bailment . . . [and] the bailee's standard of care is determined based on the purpose of the bailment and whether it's for the benefit of the bailee alone, the bailor alone, or for the benefit of both parties.

If the bailment is for the benefit of the bailee alone, then the bailee owes a duty of extraordinary care. If the bailment is for the benefit of both the bailee and the bailor, then the bailee owes a duty of reasonable or ordinary care. Reasonable care is care that a person of ordinary prudence would exercise in the same or similar circumstances. If the bailment is a gratuitous bailment and is for the benefit of only the bailor, then the bailee owes only a duty of slight care.[21]

Now let’s consider two examples and examine how these principles are applied.

Example 1

Rick and Stephanie go to The Four Seasons restaurant and Rick gives his keys to a valet, who parks the car. While parking the car, the valet negligently strikes another vehicle, causing damage to the car. The valet is liable because Rick and Stephanie temporarily entrusted the valet with ownership of the car and, as such, the valet was required to exercise reasonable care. Rick is not liable since he reasonably gave possession of his car and did not behave in an unreasonable manner. Note, though, that his car insurance may still cover the damage due to the nature of auto insurance policies, which often cover damages irrespective of whether the insured was at fault.

Example 2

Robert and Jennifer are staying at the Plaza Hotel in New York City, and Robert plans to propose marriage to Jennifer after they have dinner at one of New York City’s top restaurants. Before leaving for dinner, Robert asks the hotel desk clerk to temporarily store the engagement ring in a safe place until they return from the restaurant. Unfortunately, the desk clerk accidentally drops the ring in a drain while washing her hands. The clerk is liable because the clerk, as bailee, did not exercise reasonable care. The hotel is also vicariously liable because the clerk is its employee.


            The vicarious liability doctrine extends to some situations that fall outside of the employer-employee relationship. Parents may be liable for their children’s intentional or willful acts and motor vehicle owners may be liable for the negligence of individuals to whom they grant permission to operate their vehicle. Bailees have the responsibility to safeguard bailments and the bailors are generally not liable for bailees’ negligent conduct.

            In the next module, we will consider the defenses that employers and others who face vicarious liability may assert in a legal action.

[1]See generally Janet Portman, Parents’ Responsibility for Their Children’s Actions, Lawyers.com, https://www.lawyers.com/legal-info/criminal/juvenile-law/parents-responsibility-for-their-childs-actions.html (last visited May 22, 2018).

[2] Id.

[3] See, e.g., Ala. Code. § 6-5-380; Minn. Stat. § 540.18; Mo. Rev. Stat. § 537.045.

[4] See Portman, supra note 1.

[5] See, e.g., Va. Code Ann. § 8.01-43; N.Y. Gen. Oblig. Law § 3-112(1); N.M. Stat. Ann.§ 32A-2-27; Ariz. Rev. Stat. Ann. § 12-661; Cal. Civ. Code § 1714.1; Colo. Rev. Stat. § 13-21-107; Conn. Gen. Stat. Ann. § 52-572.

[6] See, e.g., Wis. Stat.§ 948.40.

[7] See, e.g., La. Stat. Ann. § 14:92.2.

[8] See Child Access Prevention, Giffords Law Center, http://lawcenter.giffords.org/gun-laws/policy-areas/child-consumer-safety/child-access-prevention/#state (summarizing state laws holding parents liable when children access firearms).

[9] See, e.g., Conn. Gen. Stat. § 14-107; Aaron Larson, Owner Liability in Car Accident Litigation, ExpertLaw (Apr. 10, 2018), https://www.expertlaw.com/library/car-accidents/owner-liability.html.

[10]See Larson, supra note 10; see also Cal. Veh. Code § 17150.

[11] Id.

[12] See, e.g., Allen v. Toledo, 109 Cal. App. 3d 415, 419-20 (App. Ct.1980); Blake v. Moore, 162 Cal. App. 3d 700 (App. Ct. 1984).

[13] See, e.g., Colo. Rev. Stat. § 42-4-1206; Fla. Stat. § 316.1975(1); Md. Code Trans. § 21-1101; Ohio Rev. Code Ann. § 4511.661.

[14] Khan v. Heritage Prop. Mgmt., 584 N.W.2d 725, 729 (Iowa Ct. App. 1998) (citing Farmers Butter & Dairy Cooperative v. Farm Bureau Mut. Ins. Co., 196 N.W.2d 533, 538 (Iowa 1972)).

[15] Sgrov. Getty Petroleum Corp., 854 F. Supp. 1164, 1175 (D.N.J.1994) (internal citations omitted).

[16]See Brian Farkas, Bailment: What It Means Under the Law, Lawyer.com, https://www.lawyers.com/legal-info/business-law/business-law-basics/bailment-leaving-your-belongings-behind.html; see also Am. Nursery Prods. V. Indian Wells Orchards, 797 P.2d 477, 484-85 (Wash. 1990) (discussing professional bailments).

[17]See Farkas, supra note 17; see also Woodson v. Hare, 13 So. 2d 172, 174 (Ala. 1943) (“A constructive bailment arises where a person having possession of a chattel holds it under such circumstances that the law imposes upon him the obligation to deliver it to another.”).

[18]See Farkas, supra note 17; see also Hadfield v. Gilchrist, 538 S.E.2d 268, 272 (S.C. 2000) (“For instance, a gratuitous bailment arises if the bailment is undertaken as a personal favor or involuntary.”)

[19] See Levasseur v. Field, 332 A.2d 765, 767 (Me. 1975).

[20] Khan, 584 N.W.2d at 725.

[21]See Farkas, supra note 17; see also Richard H. Helmholz, BailmentTheories and the Liability of Bailees: The Elusive Uniform Standard of Reasonable Care, 41 Kansas L. Rev. 97 (1992).