Respondeat Superior: Updates from the District of Columbia and Virginia

Virginia

Any discussion of employer liability   starts with an understanding of the concept of  respondeat superior. Respondeat superior literally means, “let the master answer” and holds an employer vicariously liable for the torts of its employees. The doctrine of respondeat superior is firmly grounded in Virginia common law.

In Virginia, to recover against an employer under a theory of respondeat superior, the plaintiff must establish: 1) the existence of a employer- employee relationship; 2) that the employee was conducting his employer’s business at the time of the commission of the tort, and; 3) that the employee was acting within the scope of his employment. Master Auto Serv. Corp. v. Bowden, 179 Va. 507, 510 (1942)

To test whether the act was committed under the scope of respondeat superior, there must be proof that, “the service itself, in which the tortious act was done, was within the ordinary course of the employer’s business.” Gina Chin v. First Union Bank, 260 Va. 533, 541 (2000).

Are intentional torts and frolics not included within the scope of employment? Not necessarily! “The test of liability is not the motive of the employee in committing the act complained of, but whether the act was within the scope of the duties of employment and in the execution of the services for which he was engaged.” Tri-State Coach Corp. v. Walsh, 188 Va. 299, 306 (1948)

For example, in Tri-State v. Walsh, the Virginia Supreme Court found a defendant bus company liable for its driver’s physical assault of another motor during a traffic dispute. The Court reasoned that because the driver was engaged in the employer’s business (i.e., driving a bus) at the time of his tortious act, the company could also be held liable.

In contrast, in Davis Cary v. Hotel Rueger, Inc., 195 Va. 980 (1954), the Virginia Supreme Court found that the defendant, a hotel bellman who shot an acquaintance inside the hotel after being confronted about a personal debt, was not acting within the scope of his employment.

What to take away from these holdings? In Virginia, respondeat superior is a specific fact based inquiry. It depends on the three factors listed above, with most emphasis on whether your employee acted within the scope of employment.

*Important Note: Employers are not vicariously liable for the acts of independent contractors. A strong independent contract agreement can prevent liability against an employer in most cases.

District of Columbia

The District also recognizes the doctrine of respondeat superior. Under   this doctrine, an employer may be held vicariously liable for tortious acts caused by an employee, as long as those acts are within the scope of employment.

In order to prevail under this theory of recovery, a plaintiff must prove: (1) a master and servant relationship between employer and employee; (2) that the employee was in the process of his employer’s business at the time of the tort; and (3) that the employee was in the scope of his employment at the time of the tort. The scope of the employment is defined as “incidental” to an employer’s business and done “in furtherance of” the employer’s business.

An employee who deviates far from his duties has taken himself out of the scope of the   employment.   Temporary detour from an employer’s business does not destroy the scope of employment factor, e.g. stopping for gas and/or meals. An intentional tort is an employee’s willful or malicious act that may still be within the scope of employment.

For example, overly aggressive security guards; scope-of-employment limitation pertains to this. Traditional test for scope has been: was the employee motivated at least in part by a desire to serve the employer? Another test is foreseeability – whether the employee’s conduct should fairly have been foreseen from the nature of the employment and the duties relating to it.

Similarly, it is a fact intensive inquiry that depends in large part whether the employee was in furtherance of the employer’s business. It is important to note that as in Virginia, employers are not vicariously liable for the acts of independent contractors. A strong independent contract agreement can prevent liability against an employer in most cases.