Q: I run a hotel in a small town. One of my patrons got out of hand and the bartender had to eject him. My bartender might have been a little rough with the patron. Now, the guy is suing my bartender for assault but is also suing the hotel. How can he do this?
A: I haven’t seen the court documents, but likely they invoke the concept of “vicarious liability.”
This is a legal principle by which one person is held liable for the wrongful act of another, even though the first person didn’t do anything directly wrong. In general, this principle has a fairly broad application for employers. Businesses or employers are liable for wrongful acts of employees as long as those acts were committed during the ordinary course of their employment.
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The concept has been considered on numerous occasions by the Supreme Court of Canada. The scope of vicarious liability has expanded in recent years, meaning employers are liable for more acts of their employees. For example, in the 2004 case of Bennett, the court looked at a suit against a church for the sexual assaults committed by a priest. The court determined that vicarious liability applies not due to some wrongful act done directly by the employer, but “on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss … that results from the activity or enterprise.”
In some legal circles, this is seen as a balancing or weighing of who should bear responsibility: the innocent victim, or the employer at whose business the loss occurred.
An employer is not responsible for all losses occurring at his place of business caused by employees. There needs to be a link or relationship between the duties of the employee and the acts causing the loss. For example, if you run a hotel and your desk clerk goes nuts, runs outside, and starts smashing vehicle windshields with a baseball bat for blocks around, you will not likely be held liable for those acts because they appear to be totally unrelated to the employment situation.
On the other hand, I’m afraid that you could have a problem with your bartender. The act of keeping order in a small-town beverage room is probably within the broad duties of the bartender’s employment with you. If your bartender was doing that but got carried away, you may be liable for his wrongful assault. Bear in mind that the claimant will need to prove an assault by your bartender before your liability will be engaged. But if that’s proven, you may be on the hook for any award of money that goes against your bartender.
Sometimes the link to the employment can be broken. I had a case a few years ago where a person was ejected from a bar for being rowdy. He was already outside the doors but threw a beer bottle he was holding, hitting one of the doormen. They got angry, ran after him, dragged him back inside, handcuffed him to a stove in the kitchen, and beat him senseless. The bar owner was also sued, but argued the bouncers had acted so far outside their duties and instructions that he should no longer be liable for their vicious assault. That case settled before trial, but it would have been an interesting test as to the scope of vicarious liability.
You need competent legal advice. Seek out a litigation lawyer who does work in this area and who has the resources to research this issue.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
