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Dual liability: The sticky business of answering for employees’ intentional conduct in the state of New Jersey

8/26/25

By: Margaret D. Kartsonis

When called upon to answer for the actions of their employees, may employers be subject to both direct and indirect liability arising out of the same intentional conduct of an employee? In the State of New Jersey, the answer can be “yes.” Indeed, in New Jersey, liability to employers for an employee’s conduct may come both directly, under a theory of negligent hiring, retention or supervision or indirectly, under a theory of vicarious liability, even in instances where an employee’s conduct is intentional in nature.

Direct liability arises out of an employer’s own negligence if it knew, or should have known, that its decision-making as to hiring, retaining or supervising the employee in question could result in harm to the injured party. See Di Cosala v. Kay, 91 N.J. 159 (1982).

To the contrary, vicarious liability, often called “respondeat superior,” refers to the liability of an employer for the conduct of employees which are carried out within the scope of their employment. See Vosough v. Kierce, 437 N.J.Super. 218 (2014). Broadly speaking, the doctrine is derived from the principle that any party that benefits from conduct should also bear responsibility caused by the same. See Pantano v. New York Shipping Association, 254 N.J. 101 (2023).

To determine whether an employee was acting within the scope of his employment, New Jersey juries are tasked with evaluating the evidence presented at trial before answering the following questions:  

• First, is the conduct at issue the type which the employee is employed to perform?
• Second, did the conduct occur within the time of employment?
• Third, was the conduct intended to serve the employer?
• And finally, if force is intentionally used by the employee against another, was the use of that force anticipated by the employer?

Ivan Tymiv, et al v. Lowe’s Home Centers, LLC, et al., No. A-1380-22 (App. Div. August 22, 2025). Critically, when an employee’s conduct, however intentional or wrongful, “originated in his effort to fulfill an assigned task,” that employee may have acted within the scope of his employment. Id. Thus, at the time of the incident that the employee was attempting to serve his employer in committing an intentional tort, his employer may be deemed negligent for their wrongdoing to the same extent. Id.

Most recently, in a decision rendered on August 22, 2025, in the matter of Ivan Tymiv, et al v. Lowe’s Home Centers, LLC, et al., the Superior Court of New Jersey, Appellate Division, affirmed that employers may be subjected to dual liability at trial as a result of the intentional conduct of their employees. Specifically, though it refused to vacate a previous decision on the issue, the Appellate Court acknowledged the trial court’s error in instructing a jury in a way that allowed either an employer’s direct or vicarious liability, but not both. Thus, if conducting business in the State of New Jersey, employers should appreciate the risk that they can be held dually responsible for the acts of their employees, regardless of their employees’ affirmative intent.

For information on how we can assist you in defending a claim of liability arising out of your employees’ conduct, either intentional or otherwise, please contact Margaret D. Kartsonis at maggie.kartsonis@fmglaw.com or your local FMG attorney.

 Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.