Three Infotaining Vicarious Liability Stories

by | Feb 23, 2022 | Injuries

Vicarious liability is the legal principle that a person or entity could be legally responsible for a car crash, fall, or other injury yet not be at fault for that injury. Vicarious liability is usually based on an unequal relationship. One party makes all the rules, or at least most of them. And, as the old saying goes, with great power comes great responsibility. This concept is admittedly abstract. So, a few fables might shed some light on these ideas.

Vicarious liability is very important to Lexington personal injury attorneys, especially in catastrophic injury and wrongful death claims. Typically, individuals don’t have enough insurance coverage to provide fair compensation in these cases. Thanks to vicarious liability, these victims have a better chance to obtain full compensation for their economic losses, such as medical bills, and their noneconomic losses, such as pain and suffering.

Dram Shop

We mentioned unequal power above. Typically in these situations, Party A has something Party B wants, and usually, that something is difficult to obtain elsewhere.

Kentucky’s dram shop law is a good illustration. Way back in the day, saloons and other commercial providers sold alcohol by the “dram” as opposed to by the serving, and the name stuck. 

Pretty much every state has a dram shop law that holds such providers vicariously liable for car crash damages. The laws in each jurisdiction vary slightly. Kentucky’s version of the dram shop law applies if a “reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.”

Assume Lilith stops at a neighborhood bar one Friday night on her way home from work. It’s been a long week, so she has a mojito. Then, in between a few games of pool and the karaoke classic Sweet Caroline, she has three more. After the first one, Sam the bartender notices that she’s a bit bubblier and more relaxed, but he thinks nothing of it. After the second one, she shows some mild symptoms of intoxication, like slurred speech. But, he serves her anyway.

Incidentally, at least one person in that video clip, including the person who held the camera, was most likely intoxicated.

Back to our story. If Lilith causes a car wreck after she leaves, Sam’s bar could be vicariously liable for damages under the dram shop law. But the claim is complex.

The standard is a “reasonable person. . .should know” the patron was intoxicated. Sam is an experienced bartender, so he should be able to see the signs. But would a “reasonable person” have known that Lilith was drunk, especially since Sam keeps the bar dark and loud? You can bet the insurance company would contest this point.

The insurance company would most likely contest foreseeability as well. If Lilith drained her third mojito, she would have most likely been sloshed. But technically speaking, Sam didn’t know if she would finish it or not.

A similar foreseeability issue comes up in packaged alcohol sales. If Lilith leaves Sam’s bar and buys a six pack at the supermarket on her way home, foreseeability (possibility) is harder to prove. Lilith might crack one open on the way home. Then again, she may not.

Respondeat Superior

Much like dram shop liability, this employer liability theory seems straightforward, but it is often complex. In Kentucky, employers are vicariously liable for damages if their employees are negligent during the course and scope of their employment.

Assume Otto, as part of a court-ordered community service obligation, agrees to drive the Springfield Retirement Castle’s bus one weekend. To no one’s surprise, Otto wrecks the bus.

The insurance company would most likely argue that Otto was an unpaid volunteer and not an employee. If that’s the case, the respondeat superior rule would not apply. Some other legal theories might be available, as explained below.

But this discussion might be academic. Under Kentucky law, Otto was most likely an employee for negligence purposes. The Springfield Retirement Castle told him where to make stops, when to make stops, and most likely, what route to travel. That slight degree of control makes Otto an employee, paycheck or no paycheck.

Respondeat superior alternatives include negligent hiring, which is hiring an incompetent worker, and negligent supervision, which is failing to monitor employees and/or take appropriate correctibve action.

Negligent Entrustment

Wally worked long and hard to get his learner’s permit. WHen the big day arrived, the normally-responsible Ward allowed Wally to drive to the store by himself. After all, it’s only a few blocks away, so what could go wrong? Of course, plenty of things could go wrong, especially if that ne’er-do-well Eddie Haskell comes along for the ride. 

If Wally crashes the family car, Ward could be vicariously liable for damages. He knew that Wally didn’t have a license and was therefore incompetent. Owners are vicariously liable for damages in these situations.

But what if dear Aunt Martha gave Wally the keys to her car? Knowledge of Wally’s incompetence might be harder to prove.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Virtual, home, and hospital visits are available. #goodelawyers