Is the landlord liable for employee negligence?

Colin McCarthy
Colin McCarthy | 3 min. read
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Published on May 24, 2013

Relationships. Everybody’s got them, but not everyone is liable for the actions of those in their relationship. We’re talking about “vicarious liability,” where the landlord is liable to a third party for the wrongdoings of someone or somebody it hired. This is a legal doctrine wherein the courts hold a passive actor responsible for the acts of another if there’s a relationship there and if the circumstances warrant imposing liability.

Here’s the doctrine. A landlord is almost always going to be liable for her employee’s negligent acts. In California there’s cases on it and a statute or two. (For all us working stiffs out there, remember, too, that in California the employer has to defend and indemnify you for negligent acts committed doing your job). As long as the employee does not stray from his duties and commit acts outside the course and scope — intentional acts that have nothing to do with the job — the employer will be liable for the employee’s act. If the delivery driver employed by a package delivery company runs someone down in a cross walk while delivering packages, the employer is liable. (As a practical matter, both the driver and the company are named as a defendant, but the employer is liable to the third party and foots the bill pursuant to insurance.) A landlord will also be liable to a third party for the acts of an independent contractor if there are particular risks involved in the activity being done by the contractor.

As with most legal doctrines, there is a thought process behind it. “The principal justification for the application of the doctrine of [vicarious liability] in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.”* So the landlord who employs folks to do maintenance around the yard, in the common areas, will be liable to the third party injured by the deficient work-related acts of that employee. Like the janitor that left the chairs near the window in a post a few months back, the doctrine applies.

There is an issue of whether someone is an employee or an independent contractor. Some businesses attempt to avoid the consequences of liability and other payroll obligations by classifying folks who do work for them as independent contractors. There is a whole body of law on that and what constitutes an employee or independent contractor. So we’ll talk about that in the next post, and then move on to some examples of landlord employees gone wild . . .

*Johnston v. Long, 30 Cal. 2d 54, 64 (1947)

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

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Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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