Employer Vicarious Liability

The question of whether a violation of the law (a “tort”) by an employee or independent contractor (a “servant”) can be imputed to his employer (or “master”) turns on whether the servant was acting within the scope of his employment at the time. Federal Courts apply State law when deciding such issues, so the position taken by Illinois courts is controlling. The legal doctrine by which an employer will be held liable for his employee’s actions is known as respondeat superior. Illinois courts typically decide scope-of-employment issues in line with the Restatement of Agency. According to the Restatement, the question of whether a servant’s tort was within the scope of his employment depends on whether it took place

  1. While doing the kinds of things someone in that position ordinarily does;
  2. During the time when someone in that position would customarily work;
  3. At the locale at which someone in that position would customarily work.

To find liability Illinois courts also require that the tort have taken place, at least in part, to complete a task for the master. Finally, the specific violation should not have been reasonably foreseeable – or, foreseeable, then reasonable steps must have been taken to prevent it.

In short, the operative question is whether the tort in question could have been foreseen and, if foreseeable, could have been prevented. So it is not surprising that criminal or outrageous conduct by an employee is generally not considered within the scope of employment.


Franklin v. Zaruba, (7th Circuit Court of Appeals, 1998)

Schwartz v. State Farm, (7th Circuit Court of Appeals, 1999)

Jones v. Patrick & Associates, (7th Circuit Court of Appeals, 2006)