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What Is a Secondary Liability?

Secondary liability arises when a party indirectly contributes to or benefits from wrongful conduct, such as a business being held accountable for a user's illegal actions. Curious about how this affects you or your business? Dive deeper into the nuances of legal responsibility with us.
Terry Masters
Terry Masters

Secondary liability is imposed on a third party when he has some level of legal responsibility for the wrongdoing of another. The legal theories that make a third party liable apply if the party supported, enabled or benefited from the act. This sort of assignment of responsibility can be either vicarious or contributory. Vicarious responsibility is based on the nature of the relationship between the actor and third party. Contributory responsibility is based on the actions of the third party and his actual or constructive knowledge of the wrongdoing.

Basic legal principals make each person responsible for the consequences of his own acts. To make someone legally liable for the actions of another, the law requires a relationship to exist that can support a causal connection between the consequences of a person's wrongful actions and the nature and conduct of the relationship with the third party. For example, many people might say that parents are responsible for the actions of their young children. This relationship does not mean that a parent is strictly liable for everything a child might think to do, but if the law determined that the parent did know or should have known of the consequences of the child's actions, the parent could be held secondarily liable.

Woman posing
Woman posing

The law does not allow secondary liability lightly. It is a serious matter to hold a person who did not commit an act responsible for the actions of another person. This is why the law only allows this sort of liability to attach to a third party under certain circumstances. The two ways that a party can be pulled into an action are through a theory of vicarious or contributory liability.

Vicarious liability is a type of secondary liability that attaches to people through the law of agency. Agency exists between people who have a master-servant relationship, such as an employer and an employee. When an employee commits a wrongful act, the employer can be held liable if the court finds the employee was acting within the terms of his employment. For example, if a company's deliveryman gets into a car accident while making deliveries for his employer, the courts will likely allow the company to be pulled into the lawsuit against the driver because it is vicariously liable for the actions of its employees who are operating on the company's behalf.

Contributory liability is a type of secondary liability that often arises in criminal cases through charges of aiding and abetting the crime of another. If the court finds a third party assisted, enabled or benefited from the actions of a wrongdoer, it can impose the same sanctions on the third party as it imposes on the person who actually committed the crime. The third party must have had actual or constructive knowledge of the wrongdoing, however, for secondary liability to attach. This sort of knowledge can be hard to prove with the level of certainty needed to support a finding of guilt.

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