Vicarious liability arises from the common law doctrine of “agency law” and occurs when someone in a superior or controlling role is held responsible for the errors and omissions of their subordinates or agents.
This means that if you hire subconsultants to work on yours or your client’s project, you can be held vicariously liable for damages that arise as a result of their actions.
“Vicarious liability” is a form of strict liability that arises under the common law doctrine of “agency law.” Basically, this means that someone acting in a superior or controlling role is responsible for the acts of their subordinates or agents. The most common example: an employer is liable for the acts of its employees. Similarly, a lead designer is responsible for the acts of the subconsultants or subcontractors it directly hires, or any third party it has the right, ability and duty to control on the job.
Vicarious Liability from Subconsultants:
Very few architects or engineers acting as lead designer can complete a project without subconsultants. Typically, one or more subconsultants, whether structural engineers, civil engineers, mechanical engineers, electrical engineers, landscapers, or other design specialists, are needed for their technical expertise.
The ability to find and hire subconsultants, then, is a critical skill. You must carefully match the needs of the client and the project to the skills of your team of subconsultants. Not only does the success of the project depend on it, you will be vicariously liable for any errors or omissions those subconsultants make.
You might think that avoiding hiring subconsultants, e.g., having all design firms contract directly with your client, might be a preferable option from a liability standpoint. Unfortunately, that typically creates more problems (and liabilities) than it eliminates. You would likely lose your ability to select and manage your design team. The lack of coordination would likely lead to increased design errors and omissions, and you’d be drawn into the disputes regardless of who contracts with whom.
Want to know more?
There are other ways you can further mitigate vicarious liability when working with subconsultants. Download our free guidebook “Avoiding Vicarious Liability from Subpar Subconsultants” here to find out: