Recent Illinois case clarifies the extent of vicarious liability, kind of...

As you probably know, the principle of vicarious liability allows a plaintiff to recover compensation from an employer for the conduct of an employee, but only if the conduct of the employee is "within the scope of employment."  For this reason, there is a lot of case law out there attempting to explain how to determine if a certain act is within the scope of employment and the case law is not always consistent.  Also, some courts have a tendency to define the scope of employment too narrowly, thus allowing employers to escape liability.

Now comes a decision from the Illinois Appellate court that adds to the confusion.  In this case, called Dennis v. Pace,  the plaintiff alleged that after becoming intoxicated she passed out while riding a Pace bus, and that, rather than calling for help or notifying his supervisor, the driver took her home at the end of his shift and sexually assaulted her.  She then sued Pace Suburban Bus Service. 

The lower court dismissed the complaint finding that vicarious liability did not extend to a sexual assault that occurs after work at an employee’s home.  However, the appellate court reversed concluding that the plaintiff could support the claim because the driver “initiated the sexual assault when plaintiff was riding on the bus at a time when she was a passenger and the common carrier and passenger relationship existed.”  This seems to suggest that the court was willing to define "within the scope of employment" more broadly to include conduct committed outside business hours and away from the work place as long as the conduct was initiated within business hours and within the workplace (thus being "within the scope of employment").

And I would agree with that application of the general principles to the facts.  However, although it reaches the correct result, the court's decision is not based on what can or cannot be considered to be "within the scope of employment."

The court's decision is based on an interpretation of case law in the state that appears to hold that vicarious liability rules are different in cases where the defendant is a common carrier.  According to the court, the law in Illinois has long held that a common carrier can be liable for the intentional acts of its employees even if the intentional act is outside the employee’s scope of employment and does not benefit the employer.

This is a strange result because it suggests that common carriers have strict liability over injuries caused by their employees, something I don't think is supported by the cases, particularly since the reasoning seems to be combining the principles of vicarious liability (for an employees conduct) and the high degree of care expected of a common carrier (for its own conduct).

I wonder if the case will be appealed to the state supreme court.  Stay tuned.