7.19 Imputed Liability

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.19 IMPUTED LIABILITY

7.1901 In General.

If a defamation defendant faces liability, others may share it. The question of whether imputed liability exists most often arises with agency relationships.

7.1902 Corporations.

A company can face liability only for an employee's completed defamation tort. The law cannot impose liability unless the defendant acted with the requisite degree of fault at the time that he or she published the alleged defamation. ⁴⁷⁵² It is not possible to create primary (or even imputed) corporate liability by taking one employee's words and matching them with another employee's negligence, common law malice, or actual malice.

7.1903 Agent's Individual Liability.

As in all imputed liability situations, the agent committing the tort can face individual liability. Although the company might have deeper pockets, both the defaming employee and, under certain circumstances, his or her employer can face defamation liability. As one court explained it, an individual employee "may be liable in an individual capacity for his acts as a corporate employee." ⁴⁷⁵³

7.1904 Principal's Primary Liability for Third Party's Defamation.

In certain very limited circumstances, some states recognize a defendant's primary (not imputed) liability for a third party's defamation. Those narrow circumstances involve the defendant's failure to remove a third party's defamatory statement from premises or chattels that the defendant controls. ⁴⁷⁵⁴ In practical terms, this type of liability seems like imputed liability because a company might be found liable for graffiti or other defamatory statements written on its premises by a fellow employee.

7.1905 Compensatory Damages.

Virginia follows the standard respondeat superior doctrine for defamation. ⁴⁷⁵⁵

[C]orporations may be liable for compensatory damages for defamatory statements which are uttered by an agent while engaged in the scope of his employment and which grow out of an act connected with the employment. ⁴⁷⁵⁶

Virginia imposes imputed liability freely. ⁴⁷⁵⁷ Even an individual employee's intentional torts can trigger the company's imputed liability if the employee essentially was "on the clock" and where he or she belonged at the time the employee committed the intentional tort. ⁴⁷⁵⁸

One decision in the Western District of Virginia has provided one of the few bright spots for imputed liability defendants. That court pointed to the requirement that the employees' acts be within the "scope of their employment" in dismissing a claim against Wal-Mart based on the unauthorized...