VICARIOUS (DERIVATIVE) LIABILITY

I have opened a men’s specialty store, selling suspenders, cigar scissors, and other fashionable men’s items. I have hired the cats to work for me to keep the store free of mice. They immediately formed a union and demanded an hour off for lunch and two fifteen-minute breaks. Being afraid of a complaint to the NLRB, I agreed.

It is during one of the cats’ breaks, when they are batting their toy mouse back and forth that you come in looking for moustache wax. You approach the counter, and just as you say, “Do you have Dr. Culbertson’s……” you let out a yelp and hit the floor. You have stepped on the cats’ toy mouse, which they have swatted beneath your feet, and you have lost your balance and fallen to the hardwood floor.

“My ankle,” you say with a pained look on your face. “Quick, call an ambulance.” As I am placing the call, you say, “I hope that you have lots of insurance.” To your surprise, I say, “I agree that I am responsible for the cats’ negligence under the principle of vicarious, or derivative, liability. An employer has liability derived from the negligence of an employee during the course and scope of the employee’s employment, even when the employee is on a work break.”

I ask, “Can I help you up?” “No, it’s too painful,” you say. Just then, the cats attempt to retrieve their toy mouse by jumping over your prone body, and you spring to your feet in alarm. “These cats are a menace to society!” you say, red-faced from the exertion.

“Do you still need the ambulance?” I ask, timidly. The cats look at me with knowing smirks as they get back to work, their break now over.

Allen Drescher has practiced law in Ashland and Southern Oregon since 1973. His practice areas include business law, real estate, estate planning and elder law.

© Allen Drescher