Respondeat Superior and Vicarious Liability: Maryland Update

In Maryland, plaintiffs may sue an employer for the negligence of an   employee, if the employee was acting within the “scope and course” of his or her employment at the time of the employees negligence. Generally, determining whether the employee was in the scope and course of employment requires a detailed factual inquiry. To be within the scope and course of employment, the employee’s actions must be: those the employee is employed to perform, occur in a time and place reasonably associated with the actor’s employment, and done to serve the employer in the furtherance of their business.

On each end of the spectrum, are examples of actions of an employee that are clearly outside the course and scope of employment, and   actions   that   are   clearly within the course and scope of employment. For example, in Tall ex rel Tall v. Board of School Commissioners, a Baltimore City public school system teacher physically assaulted a nine year old child with disabilities during school hours and on the school premises. The teacher’s actions were “unprovoked, highly unusual, and quite outrageous,” and the court found that the teacher’s actions were willful and malicious. For those reasons, despite satisfying the other elements for actions to be within the scope and course of employment, the court found that the teacher’s actions were well beyond his expected activities, and in no way furthered his employer’s interests. Accordingly, the school system was not vicariously liable for the teacher’s actions.

Between the obvious deviations from the course and scope of employment and the situations in which an employee is clearly within the scope of employment, there are various factors courts apply to determine vicarious liability of employers. In Barclay v. Briscoe, a longshoreman was driving home from a twenty-two hour shift, fell asleep at the wheel, and caused a head-on collision. The court agreed that it was foreseeable that the employee might fall asleep on his drive home after a long shift working for the employer. However, foreseeability does not create a duty. In order to hold the employer liable for the off-duty actions of the employee, the court held that there must be some preexisting special relationship between the employer and the plaintiff, or that the employer had the ability and authority to control the off- duty actions of the employee. Barclay follows the consistent holdings in Maryland that employers are generally not liable for the actions of their employees who are commuting to or from work.

The ability and authority to control the actions of an employee are often involved in determining the scope and course of employment. In Drug Fair of Maryland, Inc. v. Smith, a drugstore clerk, usually responsible for restocking shelves and assisting customers, physically detained and attempted to remove a customer from the store. The evidence showed that the clerk was asked to apprehend shoplifters on four to five previous occasions, and that on the date in question, the store manager on duty requested the apprehension and removal of the plaintiff. The employer argued that some of the collateral physical altercations that occurred between the employee and plaintiff during the apprehension were not the type authorized by the employer. Despite there being no express authorization or policy regarding the detention of customers, the court found it dispositive that the clerk was explicitly directed by his employer to detain the plaintiff. Because the actions that occurred were one “continuous sequence,” the court found the entire altercation to be implicitly authorized by the employer.

Generally, whether or not an employee is within the scope and course of employment is a highly fact specific question, and more often than not, is a question for a jury. However, Maryland courts consistently apply the same factors in evaluating the issue. These factors include the location and time of the allegedly tortious actions, whether the time and location are reasonably related to the employee’s employment, whether the actions are the type the employee was hired to perform, and whether the actions are reasonably calculated to serve the employer. If those factors are answered affirmatively, employers will often be held liable for the acts of their employees.