The Law of Vicarious Liability

In Maras v. Milestone, Inc., the Second District recently issued a decision that contains a good summary of Illinois law on vicarious liability.

In a case arising out of an alleged beating of a disabled woman at the home in which she lived, plaintiff sued the home's owners for battery on a theory of vicarious liability. One of the defendant's chief contentions for dismissal was that "[p]laintiff has not pled one fact to suggest that [the] battery upon the plaintiff by 'striking her repeatedly' was the type of conduct that the employees were, in fact, employed to perform."

The lower court agreed with this reasoning and dismissed the counts based on vicarious liability, but the appellate court reversed:

An employer is vicariously liable for the tort of its employee only if the tort is committed while the employee is acting within the scope of his or her employment. Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514, 517 (2001). Here, the court clearly implied that defendant's employees' alleged actions could not have been within the scope of their employment. A court should determine as a matter of law that an employee acted outside the scope of his or her employment only if no reasonable person could conclude from the evidence that the employee was acting within the scope of his or her of employment. Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989).

This is not a case where a court could decide as a matter of law that the torts plaintiff alleges fell outside the scope of employment of defendant's employees. A tort can fall within the scope of a person's employment even if the conduct was unauthorized or forbidden by the employer. Wilson v. Clark Oil & Refining Corp., 134 Ill. App. 3d 1084, 1090-91 (1985), citing Restatement (Second) of Agency §230 (1958). The employer may be liable for the "negligent, wilful, malicious or even criminal acts of its employee[] when such acts are committed in the course of employment and in furtherance of the business of the employer." Webb v. Jewel Cos., 137 Ill. App. 3d 1004, 1006 (1985). If an intentional tort is motivated in part by an intent to serve the employer's purpose and in part by the employee's venting of emotion, the employer may be vicariously liable. Sunseri v. Puccia, 97 Ill. App. 3d 488, 493 (1981). The employer is not liable, however, if the act is committed solely for the employee's own benefit. Webb, 137 Ill. App. 3d at 1006. The outrageousness of an act may be evidence that the employee has gone beyond the scope of his or her employment, but it is not conclusive. Sunseri, 97 Ill. App. 3d at 493.

Comments

[BAM]

My firm represented Milestone in that case. Whether the Second District got it right or wrong is a matter of opinion (we respectfully disagree with the decision), but, based on the facts known to date (most of which were not before the appeals court), the plaintiff will not be able to meet the standard set forth by the Second District.

Unfortunately, the Second District's decision means that a not-for-profit organization with a fairly high self-insured retention will spend a lot of money either winning or settling the case.