Vicarious Liability
The doctrine of vicarious liability functions by placing the liability of one’s actions upon another. Where an employment relationship exists, an employer can be held vicariously liable for the actions of his/her employee. Requiring that there be an employment relationship limits the employer’s liability. This requirement prevents the employer from being liable for any actions that their employee may have committed prior to entering into the employment relationship, as well as those actions that are committed once the employment relationship has ended.
Furthermore, an employer is only liable for those actions which occur while the employee is acting in the course of employment. This requirement, however, is not always clear cut. What can be classified as acting in the course of employment cannot be universally defined, but rather will depend on the facts of each individual case.
An example of vicarious liability can be seen in Cimpean v. Payton [2008] O.J. No. 2665. In this case the respondents alleged that an NBA team and the NBA were vicariously liable for the actions of three players who assaulted the respondents in an adult entertainment lounge. The court stated:
In my opinion, clause 5(b)(iii) of the Bucks contract with each player is reasonably capable of leading to the conclusion that the employment relationship between the Bucks and each player involved more than just playing basketball. It may well have included reputational and image issues which may be affected by some forms of off court conduct, and which may damage the team, the franchise and its financial position. Consequently, I am of the opinion that there is a sound basis, on the assumed facts, for concluding that there is a strong connection between the Bucks' business undertaking and the wrongful acts in issue. In contracting for good off court behaviour, the Bucks made off court behaviour part of their business concerns. In this circumstance, it is fair and just that the Respondents have the opportunity to claim that the Bucks are vicariously liable for the players conduct. In addition, vicarious liability, if ultimately imposed on the Bucks, will likely have the effect of ensuring that teams will exercise a greater degree of influence over the free time activities of players on a road trip, as the players were at the relevant time.