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Respondeat superior is a centuries-old legal theory that allows an injury victim to hold an employer responsible for the harmful actions of its employee. The Latin phrase translates as “Let the master answer,” and its use is well-established in Virginia personal injury and wrongful death law.

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Technically, respondeat superior is a form of vicarious liability. The employer bears responsibility for the actions of its employee even though the employer did not instruct nor cause the employee to injure or kill another person.

pxhere, https://pxhere.com/en/photo/766921The concept flows directly from the obvious fact that an employer equips and empowers an employee to act on its behalf; that is, the employee becomes an agent of the employer. When actions taken for the benefit of the employer inflict harm, it is not really any different, in a legal sense, than if the employer had acted directly.

A large body of Virginia case law establishes rules for when a personal injury or wrongful death attorney can invoke respondeat superior on behalf of a client, The three basic tests are

  • Does an employer-employee relationship exist?
  • Was the employee conducting employer business at the time the injury or death occurred?
  • Was the employee acting within the scope of his or her work-related duties?

The accident victim’s lawyer must be able to answer each of these questions with a yes. Defendant employers will often contest the third point, arguing that the employee took unauthorized actions. Generally, courts will agree that anything an employee did in the interest of an employer was within the scope of employment even if a specific action is not in the employee’s job description.

Another defense that an employer may try involves claiming that the person who inflicted injuries or caused a death was not really an employee. Employers cannot be held vicariously liable for the negligence or recklessness of a contractor.

The tests Virginia courts use to determine whether a person is an employee include

  • Does the employee pay the person through its regular payroll?
  • Can the employer fire the person?
  • Does the employer provide the person with a location for work and all the materials to do his or her job?

Finding answers to questions like these can require going before a civil trial jury. As Virginia personal injury and wrongful death attorneys, my colleagues and I have done this in cases involving

EJL

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