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Vicarious liability holds that when an employee is negligent and causes damage in the course of work, the employer is held liable. What if the "work" itself is negligent, and the damage brought about by negligence harms the very person hired for the negligent act?

Example Case

For example, let's assume that Fred hires Barney to stage a fake attack during a self-defense class so that Fred can demonstrate a self-defense technique. Barney is therefore paid to act as Fred's attacker, and they have agreed on a safe plan to conduct this training session. None of the students are informed of this and it hasn't happened in the class before.

In the next lesson, Barney storms in through the open door and attempts to attack Fred with a training knife. One of the students, Uriah, intervenes and severely injures Barney due to thinking the sudden attack without warning is real. Fred neither injures nor is himself injured.

My thoughts

While I don't think Uriah would be liable (as a reasonable person would think Barney is a real attacker), would Fred be liable to Barney? Would the fact that Fred and Barney were both involved in a negligent plan be a factor?

Note: The United States is the jurisdiction, but various jurisdictions within the United States would factor in contributory negligence vs. compensatory negligence. I would be interested in hearing how both philosophies would play into the above scenario.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Feb 12, 2022 at 23:42

1 Answer 1

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Under U.S. law, when you hire someone and they are injured while doing work for which you hired them, the ordinary tort law regime does not apply. Instead, you are in the worker's compensation regime, under which the employer is strictly liable for the injury. Whether the employee or the employer was at fault in any way (negligent, grossly negligent, reckless, or intentional) is largely irrelevant (except that worker's compensation insurance does not cover the employer's intentional harm to workers which is the employer's responsibility to pay on an uninsured basis).

This applies to all injuries on the job, whether or not they are related to the work, and whether or not anyone involved with the employer actually did anything wrong.

For example, an employer has strict liability for the injuries of a convenience store clerk sustained by the clerk in an armed robbery of the convenience store where the clerk is working undertaken by felon who escaped from prison hours before due to the carelessness of the prison guards.

Usually, that injury is fully insured if the employer has the legally required worker's compensation insurance in place, but the penalty for not having it in place is most commonly that the employer has liability to the full extent, if not greater, than the employer's worker's compensation insurance would have if it was in place.

Worker's compensation recoveries are limited to actual economic damages like lost wages and medical expenses, without regard to non-economic harms like pain and suffering and worker's compensation plans also have a very limited death benefit when the worker has no dependents. But these limitations on damages don't always apply when the employer fails to have worker's compensation insurance in place.

Worker's compensation liability varies from place to place, but in most states it applies to independent contractors who have not put in place worker's compensation insurance for themselves as well.

In your example, Fred has full liability for Barney's injuries. Uriah does not have liability for Barney's injuries due to his good faith belief that he was acting in self-defense or defense of others.

But note that Fred's strict liability for Barney's injuries does not preclude a third-party from having liability as well, both to Barney (for damages for which there is not employer liability under the worker's compensation regime such as pain and suffering, and/or in the case of an intentional tort like the armed robbery of the convenience store, punitive damages), and to the employer/worker's compensation insurer for a subrogation claim to recover the amounts paid to Barney as a result of the third-party's negligence or intentional acts.

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