Vicarious liability
"Whoever entrusts another person to perform an act shall be liable for the damage caused by that person..."
Art. 429 Polish Civil Code
Vicarious liability, which is commonly understood to describe the liability of an employer for an employee's wrongful acts committed within the scope of his or her employment, is in fact much broader in scope. The Polish Civil Code extends vicarious liability to the State Treasury, parents, homeowners, renters and automobile owners, among others. And, as Art. 429 would appear to indicate, to any individual who "entrusts" another person to do something on his or her behalf. Now, let's take a closer look at how vicarious liability works in practice.
As my wife and I are new parents, parental liability is close to our hearts. First, the good news: Parents are generally not liable for the actions of their teenagers. Now the bad news: Art. 426 provides that "a minor who has not attained the age of 13 is not liable for any damage caused by him." In other words, the parents are liable for the actions of their adolescent children. Parents may avoid liability only if they are able to prove that they exercised due care in supervising their child, and that despite such supervision, the damage nevertheless occurred.
Both homeowners and renters, according to Art. 433, are liable for damages "caused by the ejection, effusion or falling of any object from the premises...," unless the damage was caused by a third party visitor or an act of force majeure, and, further, provided that the renter or homeowner could not otherwise have prevented such damage. Similarly, the owner or manager of a building is liable for damage suffered by a third party caused by the building's collapse, either in total or in part, unless the building's owner or manager is able to establish that such damage was not due to faulty maintenance or a defect in construction.
The State Treasury, pursuant to Art. 417, is liable for "damage caused by an official of the State in carrying out his duties," including, in certain cases, liability for damage caused by city or other local authorities in performance of their duties mandated at the national level. A state official is defined as employees of the state, persons acting upon instructions of a state employee, elected officials, soldiers and members of the judiciary, including prosecutors and judges. Liability of the State Treasury, however, has not always been clear with respect to damage caused by a state official if such damage was caused as a result of a direct order. Until recently, the Civil Code limited the liability of the State Treasury to only those instances when such order had been adjudged to violate the law and the responsible state official had been convicted of a criminal offense as a result of such damage or otherwise fault was acknowledged by the state official's superior. The Constitutional Tribunal, however, in a ruling issued on December 4, 2002, declared this provision in breach of the Constitution. The offending provision, Art. 418, has now been deleted from the Civil Code.
Automobile owners, and for that matter, owners or operators of any form of mechanical transport, are liable for damage caused by the operation of such vehicles, unless the damage was caused by a third party, to whom the owner is not otherwise responsible, who temporarily had exclusive possession of the vehicle. To avoid any doubt here, the owner of a shipping company is liable for damage caused by his or her drivers while performing their duties. As is the owner of a messenger service that employs cyclists to deliver packages across town.
And finally, in case any teenager tries to use this article to convince their parents that it is okay to give them the car keys, think again. Although parents are generally not liable for the actions of their teenage sons and daughters, they most likely do pay the insurance premium on the family car. If you have an accident while driving the family car, your parents' insurance company may very well increase the annual premium or terminate coverage as a result of your accident.
Paul Fogo is a senior attorney with Miller Canfield W. Babicki & Partners.
Art. 429 Polish Civil Code
Vicarious liability, which is commonly understood to describe the liability of an employer for an employee's wrongful acts committed within the scope of his or her employment, is in fact much broader in scope. The Polish Civil Code extends vicarious liability to the State Treasury, parents, homeowners, renters and automobile owners, among others. And, as Art. 429 would appear to indicate, to any individual who "entrusts" another person to do something on his or her behalf. Now, let's take a closer look at how vicarious liability works in practice.
As my wife and I are new parents, parental liability is close to our hearts. First, the good news: Parents are generally not liable for the actions of their teenagers. Now the bad news: Art. 426 provides that "a minor who has not attained the age of 13 is not liable for any damage caused by him." In other words, the parents are liable for the actions of their adolescent children. Parents may avoid liability only if they are able to prove that they exercised due care in supervising their child, and that despite such supervision, the damage nevertheless occurred.
Both homeowners and renters, according to Art. 433, are liable for damages "caused by the ejection, effusion or falling of any object from the premises...," unless the damage was caused by a third party visitor or an act of force majeure, and, further, provided that the renter or homeowner could not otherwise have prevented such damage. Similarly, the owner or manager of a building is liable for damage suffered by a third party caused by the building's collapse, either in total or in part, unless the building's owner or manager is able to establish that such damage was not due to faulty maintenance or a defect in construction.
The State Treasury, pursuant to Art. 417, is liable for "damage caused by an official of the State in carrying out his duties," including, in certain cases, liability for damage caused by city or other local authorities in performance of their duties mandated at the national level. A state official is defined as employees of the state, persons acting upon instructions of a state employee, elected officials, soldiers and members of the judiciary, including prosecutors and judges. Liability of the State Treasury, however, has not always been clear with respect to damage caused by a state official if such damage was caused as a result of a direct order. Until recently, the Civil Code limited the liability of the State Treasury to only those instances when such order had been adjudged to violate the law and the responsible state official had been convicted of a criminal offense as a result of such damage or otherwise fault was acknowledged by the state official's superior. The Constitutional Tribunal, however, in a ruling issued on December 4, 2002, declared this provision in breach of the Constitution. The offending provision, Art. 418, has now been deleted from the Civil Code.
Automobile owners, and for that matter, owners or operators of any form of mechanical transport, are liable for damage caused by the operation of such vehicles, unless the damage was caused by a third party, to whom the owner is not otherwise responsible, who temporarily had exclusive possession of the vehicle. To avoid any doubt here, the owner of a shipping company is liable for damage caused by his or her drivers while performing their duties. As is the owner of a messenger service that employs cyclists to deliver packages across town.
And finally, in case any teenager tries to use this article to convince their parents that it is okay to give them the car keys, think again. Although parents are generally not liable for the actions of their teenage sons and daughters, they most likely do pay the insurance premium on the family car. If you have an accident while driving the family car, your parents' insurance company may very well increase the annual premium or terminate coverage as a result of your accident.
Paul Fogo is a senior attorney with Miller Canfield W. Babicki & Partners.
