Winter 2018

Delaware: Vicarious Liability of Employers

Respondeat Superior is the doctrine by which an employer can be held liable for the actions of its employees. This doctrine only applies if the tortious actions of the employee were within the scope of the employment. Generally, the employer is vicariously liable for the actions of the employee (or its agent). Fisher v. Townsend’s, Inc., 695 A.2d. 53 (Del. 1997). Two general rules establish the framework for determining vicarious liability.

First, if the principal is the master of an agent who is a servant, the fault of the agent, if acting within the scope of employment, will be imputed to the master through respondeat superior.

Second, an owner or contractee will not be held liable for the torts of an independent contractor which are committed in the performance of the contracted work. In Delaware, if the principal assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract, a master/ servant relationship has been created. But, if a worker is not subject to that degree of physical control, but subject only to the general control and direction by the contractee, that worker is an independent contractor. Right to control is the central consideration. See also, West v. Flonard 2010 WL 892190 (Del. Super.). The Delaware Supreme Court has recognized that no one rule can be set to determine if a relationship is that of a servant/master or that of an independent contractor, and each case depends on its own facts. The determination is made by the fact finder, usually a jury.

Delaware   recognizes   Section   220   of the Restatement (Second) of Agency as an authoritative source for defining the master- servant relationship. The Restatement (Second) of Agency states that the following non-exclusive “matters of fact” are to be considered in deciding whether the actual tortfeasor is a servant or an independent contractor:

  1. the extent of control, which, by the agreement, the master may exercise over the details of the work;
  2. whether or not the one employed is engaged in a distinct occupation or business;
  3. the kind of occupation, with reference to whether, in   the   locality,   the   work is usually done under the direction of the employer or by a specialist without supervision;
  4. the skill required in the particular occupation;
  5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
  6. the length of time for which the person is employed;
  7. the method of payment, whether by the time or by the job;
  8. whether or not the work is part of the regular business of the employer;
  9. whether or not the parties believe they are creating the relation of master and servant; and
  10. whether the principal is or is not in business. Cumpston v. McShane, (internal citations omitted), 2009 Del. Super. LEXIS 191, 5-6 (Del. Super. Ct. May 15, 2009)

The key issue is the level and control one has asserted over an independent contractor. If there is little to no control, there will be good arguments that the employer should not be vicariously liable