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What is Vicarious Liability?

Vicarious liability is the legal responsibility for the negligent or intentionally wrongful conduct of a person imposed on another person or company due to a special relationship and/or duty that person owes to them or the public. It arises from either a special relationship recognized by the law such as an employer-employee relationship or a legally created duty to act to prevent harm that the liable party created such as a seller-server of alcohol over-serving alcohol to someone who is going to drive.

Vicarious liability is important in cases where the negligent actor does not have sufficient insurance or assets to adequately compensate the victim for his injuries. In some catastrophic injury claims, such as spinal injury claims, the medical bills cost millions of dollars.  Many tortfeasors (negligent drivers) do not have enough insurance coverage to satisfy such losses. Texas has one of the lowest auto insurance minimums in the country. 

Additionally, in some cases, the tortfeasor’s insurance company may deny coverage altogether. For example, if an Uber driver causes a car crash, a personal auto insurance carrier will almost always deny coverage, unless the tortfeasor purchased a commercial rider or took other such steps.  Vicarious liability is vital in these cases for the injured victim.

Is an Employer Vicariously Liable For His Employee’s Negligence?

When an employee is acting within the course and scope of his employment at the time of the negligent act, the employer is vicariously liable for the employee’s actions under the doctrine of Respondeat Superior. Respondeat superior simply means “let the employer answer for his servant.” This theory also applies to a truck driver, bus driver, or other commercial operator as well. There are two basic prongs to hold the employer liable:

  • The negligent person is acting as an employee.
  • The employee is acting within the scope of employment.

EmployeeWho is an Employee?

Determining whether someone is an employee of another is not always as black and white as it seems like it would be. Sure, there are many situations where an employee is obvious such as the people working at a fast food chain or a department store. However, the law recognizes that some employers will attempt to circumvent liability by “classifying” employees as independent contractors.  They do not want to give up the right of control that comes along with being the boss but they do not want to take responsibility for their actions. Examples of employees include:

  • grocery store checkers and baggers
  • Fast-food restaurant workers
  • teachers
  • waiters and waitresses
  • office staff.

What is an Independent Contractor?

An independent contractor is someone who does work for another person but retains the right of control over the manner and details of the work. The person hiring them has the right to hire and fire them but does not retain the right to tell them how or when to do their work. Examples of independent contractors include:

  • taxicab drivers
  • subcontractors on a job site
  • home inspectors
  • a company you hire to repair your home.
  • pest control services.

What is a Statutory Employee?

To close the independent contractor loophole in the trucking industry, Federal Law makes interstate truck drivers “statutory employees” of the interstate motor carrier they are hauling the load for. Additionally, the term “interstate motor carrier” is broadly defined to include just about any company involved in interstate commerce. a truck accident attorney can help you determine who is potentially liable.

How do You Determine Who is an Employee vs an Independent Contractor?

Courts will look at many different pieces of evidence to determine whether someone is an employee vs independent contractor. The ultimate question is who has the right to control the manner and details of the work. Here are some of the things most often looked at:

  • What does the contract say? The wording of the contract is not determinative. Courts will look past the use of the terms “employee” and “contractor” in order to determine whether the person retains the right of control or not.
  • Is the person classified for tax purposes as 1099 or W-2?
  • How is the person paid? Employees are most often hourly whereas contracts may be by the job.
  • What type of work was being done at the time and whom did it benefit?
  • Who provided the tools?
  • Who determines the method, means, and training?
  • What is the industry standard and are they special laws?
  • Who has the right to set the work hours?

All of the above are just some of the facts that a court may look at when analyzing whether someone is an employee vs independent contractor.

When is an Employee Acting Within the Scope of Employment?

An employee is acting within the scope of his employment when he is carrying out the tasks that his employer has asked him to do in furtherance of the employer’s business. They may be his normal routine tasks (i.e. daily work routine) or they may be a special errand that the employer has asked him to do. When the employee deviates from his instructions and does something for his own benefit, however, this can take him outside the scope. Often it has to be decided by a jury. Here are some examples of when an employee might take themselves out of the course and scope of their employment:

  • Going to and from work has been held to be outside the scope of employment because the employee is not yet on the clock.
  • Taking a detour or making a special stop to make a personal delivery while en route to make a delivery for an employer takes an employee outside of course and scope.

Are Businesses Who Sell Alcohol to Drunks Vicariously Liable?

Dram Shop laws are state laws that impose liability on businesses that serve and sell alcohol to the public.  They can vary from state to state. In Texas, alcohol sellers and servers are vicariously liable for a car crash damages if they sell alcohol to an obviously intoxicated person who subsequently causes a car crash.

The relevant section of the Alcoholic Beverage Code has a couple of twists. Texas’ contributory negligence law may affect the alcohol provider’s liability. Furthermore, there is also a safe harbor exception embedded in the law which shields bars and restaurants when they put all of their staff through a simple 2-hour training course online.

The Dram Shop Law applies to bars, grocery stores, and other commercial providers.


In summary, when acting on behalf of someone else, the tortfeasor may not be the only party that is responsible for damages. It is important to consider other avenues of recovery, particularly in cases of catastrophic injury or limited insurance coverage. For a free consultation with an experienced personal injury attorney in Houston, contact Simmons & Fletcher, P.C.




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Simmons and Fletcher, P.C., rooted in Christian values, exclusively handles personal injury cases, advocating for the rights of accident and negligence victims. Our Houston-based team, dedicated to compassion and excellence, handles cases across car accidents, motorcycle accidents, truck accidents, slip and falls, dog bites, and other types of cases with a commitment to personalized care. Upholding integrity and client-focused service, we strive for impactful legal outcomes. For a detailed understanding of our approach and team, visit our attorneys page.

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