Winter 2018

West Virginia: Vicarious Liability of Employers

In the state of West Virginia an employer may be held liable for the acts or omissions of his/her employee under three distinct theories: respondeat superior, negligent hiring, and negligent entrustment.

Under the theory of respondeat superior, an employer may be held vicariously liable for tortious acts proximately 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 that the injury to his person or property results proximately from tortuous conduct of an employee acting within the scope of his employment, and that the act of the employee was done in accordance with the expressed or implied authority of the employer. The scope of the employment is defined as “an act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act.” An employee who deviates far from his duties can take himself out of the scope of the employment. However, an employee’s willful or malicious act may still be within the scope of employment. See, Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973) and Barath v. Performance Trucking, Inc., 188 W. Va. 367, 424 S.E.2d 602 (1992). Moreover, scope of employment is a relative term and requires     a consideration of surrounding circumstances including the duration of the employment, the nature of the wrongful deed, the time and place of its commission, and the purpose of the act. Courtless v. Jolliffe, 203 W.Va. 258, 507 S.E.2d 136(1998).

Finally, in order to establish a claim under the theory of negligent entrustment, a plaintiff must prove that an employer who allows an employee to use a vehicle when the employer knows, or from the circumstances is charged with knowing, that the employee is incompetent or unfit to drive may be liable for an injury inflicted by the employee if the injury was proximately caused by the disqualification, incompetency, inexperience, intoxication or recklessness of the employee. See, Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726 (1962).