Thursday, February 5, 2009

Secondary Liability

In the world of torts and personal injury lawsuits, there are a number of types of liability. All of the types can be broken down into whether the liability is primary or secondary. Primary liability is when a person is held liable, or responsible, for his or her own actions. Secondary liability applies liability to an individual or company based on the actions of another party. Overall, there are usually two types of secondary liability. These two types are vicarious liability and contributory liability.

Vicarious liability is a common law creation. It is part of the law, or doctrine, of agency. In this situation, the actions of the subordinate are part of the superior's responsibility since the superior ordered or directed the subordinate to do something. The theory is called "respondent superior." Vicarious liability can be distinguished from contributory liability since contributory liability is rooted in the theory of enterprise liability, another tort area.

Vicarious liability is typically established if a third party has the right, ability, or duty to control the actor. Because of this, an employer is able to be found vicariously liable for the acts of an employee, particularly if the act that caused the harm was done as part of employment. In the same way, a parent can be found liable for the acts of their child.

In contributory liability, a third party can be held liable if the third party has knowledge of the act and or materially contributes to the act in itself. If the third party enables the act, the party can be held contributory liable.

Whereas vicarious liability attributes the act itself to the third party as if the employer, as an example, had actually caused the harm to be done individually, contributory liability holds the third party liable for the injurious act by virtue of the third party's relationship to the actual harm. The relationship is usually either that the third party enabled the act or benefitted from it.

One of the new areas where contributory liability might be applied is in the area of ISPs (internet service providers) and the actions of their network users. This issue is currently evolving and is unresolved. Internet service providers are liable in instances of primary, direct infringements of copyrights for the copies that are made on behalf of customers.

For more information on the various forms of liability, including more information on vicarious liability, please visit Their experts will be happy to answer any questions that come up.

Joseph Devine

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