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Legal Memorandum: 'Vicarious Liability' Defense

Issue: When is a municipality entitled to the ‘vicarious immunity’ defense?

Area of Law: Government Claims, Litigation & Procedure
Keywords: Vicarious liability defense; Municipality
Jurisdiction: Minnesota
Cited Cases: None
Cited Statutes: None
Date: 03/01/2007

As the name implies, “vicarious” official immunity is entirely vicarious.  That is, if the individual government official that is the subject of the immunity defense is not entitled to official immunity because his or her conduct involved ministerial duties, then his or her governmental employer is similarly not entitled to the defense.  See Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 317 (Minn. 1998). 

Even when an official is entitled to common law official immunity, that does not necessarily mean his or her governmental employer is always entitled to the vicarious immunity defense.  Schroeder v. St Louis County, 708 N.W.2d 497, 508 (Minn. 2006).  In other words, “the transition from [individual] official immunity to vicarious official immunity is not automatic.”  Meier v. City of Columbia Heights, 686 N.W.2d 858, 866 (Minn. Ct. App. 2004). 

Although it is ultimately a policy question for the court, the party seeking vicarious official immunity must show that without vicarious immunity, “the officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.”  Schroeder, 708 N.W.2d at 508 (citations and internal punctuation omitted).  Moreover, vicarious liability will not be applied unless “failure to grant it would focus stifling attention on an official’s performance to the serious detriment of that performance.”  Id. (citations and internal punctuation omitted). 

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