Respondeat superior is an important legal doctrine that holds employers liable for many
of the torts committed by their employees.
Stay to the end, and learn when, how, and why respondeat superior applies.
Hi, this is Professor Beau Baez.
Vicarious liability is an umbrella category for a number of concepts that hold one person
liable for the actions of another person.
In Latin, vicarious means nothing more than substitute—a morally innocent person pays
for the damages caused by the person who committed the wrongful act.
Some of the concepts under vicarious liability include respondeat superior, borrowed servant,
independent contractor, apparent agency, partnership, and aiding & abetting.
Respondeat superior is a Latin phrase that means “let the master answer” or in the
modern context we would probably say “let the employer answer.”
This means that employers are liable for the tortious acts of an employee when the employee
is acting within the scope of the employment.
The first issue is whether a person is an employee.
The easiest case for that is when you see an employer-employee relationship.
Harder cases involve independent contractors, who sometimes are deemed to be employees for
purposes of respondeat superior.
Generally, when an employer controls or has the right to control the physical conduct
of an independent contractor’s work, then that independent contractor is deemed to be
an employee for purposes of respondeat superior.
The second issue involves knowing when the employee is acting
within the scope of the employment.
If you assumed this means only when doing an assigned task, you'd be wrong.
Scope of the employment is a broad concept, capturing activities that common sense would
tell us are not within the scope of the employment.
Let’s begin with some easy examples, and then discuss cases that seem
to defy common sense.
One. A coffee barista spills boiling hot coffee on a customer,
resulting in second degree burns.
Because the barista spilled the coffee while performing her job duties, the coffee shop
is liable under respondeat superior.
Two. Let’s change the facts a bit.
The coffee shop owner orders her employees to never make boiling hot coffee because of
the risk that somebody could get injured.
Barista intentionally disobeys the direct order
because customers want their coffee very hot.
Even though the barista disobeyed a direct order, she is still acting within the scope
of her employment.
If the coffee shop is unhappy with the barista, she can then fire the employee.
But that doesn’t alter the result that respondeat superior will apply.
Three. In one case out of Alaska, an employer sent its employees to a work-related convention
and told the employees to mingle with other convention goers.
One employee, late at night, heard that some convention goers were going
to a bar in the next town over.
So he drove his personal car to that bar but didn't find anyone he knew.
As he was returning to the hotel at 2 am, he had an accident,
crushing the legs of a pedestrian.
The court held that the employee was, you guessed it, acting within the scope of his employment.
This is because he was at the convention for work purposes, and was told to mingle with
other convention goers.
Four. In another case, a cook at a diner decided to impress his customers by juggling knives.
He slipped, and one of the knives impaled a customer.
The court found that this occurred within the scope of the employment.
Five. In the next case, an employee was sent to another city to open up a new store,
and he was on, 24 hours a day, seven days a week.
One evening, while in his hotel room, he
fell asleep with a cup of alcohol in one hand, a cigarette in another.
And, on his desk, some business papers.
The cigarette fell on the nearby curtains, catching them and the entire hotel on fire.
The court found that the fire occurred while the employee
was acting within the scope of his employment.
Do you start to see a pattern here?
Now before I provide you with some exceptions to liability, let me explain why scope of
the employment is so, so broad.
Generally, courts have been receptive to the idea that businesses should absorb all of
the costs associated with their activities.
After all, in the cases I mentioned, the employees would never have committed their torts if
they had not been employed.
Courts are not troubled with this approach, especially given the availability of insurance.
Sometimes this broad approach is associated with the big pockets theory
or deep pockets theory of liability,
where the person with the money is held liable.
Alright, now let’s look at two situations where employees are deemed to not be acting
within the scope of their employment.
The first involves intentional acts and the second criminal acts.
For example, suppose that a barista sees someone in the coffee shop that she hates, so she
grabs a large pitcher and hits the customer with it.
The employer is not liable as this was outside the scope of her employment.
However, there are three exceptions to the rule that intentional or criminal acts are
outside the scope of the employment.
1. The conduct was specifically authorized by the employer.
Going back to our barista example, imagine the coffee shop owner provides the barista
with the pitcher and tells her to go hit that customer.
The barista would then be acting within the scope of the employment.
2. The conduct was naturally foreseeable from the nature of the employment.
In one case, an emergency room technician abused his power
by touching patients in inappropriate places.
The court found that this criminal conduct was naturally foreseeable, and therefore within
the scope of the employment.
3. The conduct was motivated by a desire to serve the employer.
Here, imagine that a shoplifter is running out of the store and an employee decides to
chase the thief.
During the chase, employee intentionally pushes bystander out of the way, resulting in harm
to the bystander.
The employee’s intentional act will be viewed as within the scope of his employment.
Hopefully, respondeat superior makes a bit more sense now, but if not, leave me a comment below.
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