Litigation Newsletter
Respondeat Superior in Theory and Practice
In general, people are not liable for the actions of others. There are, however, exceptions to this rule. One long-standing exception is the doctrine of “respondeat superior,” a Latin term meaning “let the master answer.” Historically, the doctrine allowed recovery from a master/employer for injuries caused by a servant/employee. One rationale was that the employer ordered or approved the action and probably received some benefit from the employee’s action.
Modern Respondeat Superior
As the doctrine has been modified, the requirement that the employer specifically order or approve the action has been largely abandoned. In most jurisdictions, respondeat superior or vicarious liability holds that an employer may be liable for damages arising from an employee’s wrongful/tortious acts committed within the scope of employment. Once the relationship and scope are established, the employer becomes “strictly liable”( i.e., there is no requirement of negligence on the part of the employer).
Many associate respondeat superior with company vehicles involved in a collision with another vehicle. This application remains common, but the doctrine may also used to create employer liability for other employee actions, including sexual harassment or abuse, assaulting co-workers, misuse of e-mail, or copyright infringement. Recent actions against Catholic priests for sexual abuse often include respondeat superior charges against the Church and/or its divisions. The doctrine has even been used to create employer criminal liability for employee crimes.
Liability can be imposed for both negligent and intentional acts of employees, under certain circumstances. Analysis for imposing respondeat superior liability focuses on two issues: employee status and whether the acts occurred in within the “scope” of the employment.
Employee Status
An employer’s vicarious liability commonly arises only for actions by employees; actions of independent contractors usually do not give rise to liability, although there are exceptions. When deciding whether an individual is really an employee, courts may consider a number of factors, most of them focusing on the control exercised by the employer over the employee.
Scope of Employment
What is within the scope of employment has been a point of contention and courts have applied a wide variety of standards. One common standard provides that actions are within the scope of employment if:
- The actions taken were the type of conduct the employee was hired to perform;
- The actions took place substantially within the time and space limits of the employment, i.e., during working hours, at the place where the employee was to be, doing what was supposed to be done;
- The actions were taken at least partly for the benefit of the employer; and
- If the actions were intentionally harmful; they were foreseeable by the employer.
There are times when an employer can be held liable for actions outside the scope of employment, e.g., if the employer approved such actions. Employers may sometimes avoid liability by rules limiting and governing employee actions, but courts have tended to disregard such limitations in favor of expanding employer liability.
Determination of Scope of Employment – Example
A Virginia case illustrates the difficulties in determining if the actions are within the scope of employment. Charlotte Enger went to a store to buy groceries. While she was selecting some bananas in the produce section, the store manager told employee Geo Asfaw to pick up a stalk of celery. Asfaw went up to the manager and shouted “You do not know who I am. I am the devil. I am going to burn you.” Another employee came up and tapped Asfaw on the shoulder. Asfaw, using karate, proceeded to pummel the other employee.
One of Asfaw’s kicks narrowly missed Charlotte and her bananas. Asfaw then started to leave the store. Charlotte, somewhat shaken by the near miss, wanted to find out his name and why he was leaving. In response, as Charlotte put it, Asfaw hit her with a karate chop to the chest that sent Charlotte “flying across the floor.”
Charlotte sued Asfaw and the store, partly on respondeat superior. The judge instructed the jury that acts incidental to the store’s business and done to further the store’s interest are within the scope of employment. Acts that depart from the employee’s duties and no longer benefit the store are not. The judge also instructed that, if Asfaw’s actions arose out of an activity within the scope of employment or within the course of business, the act may be considered within the scope of employment. The jury found for Charlotte against the store, which appealed, claiming the last part of the judge’s instructions was in error.
The Virginia Supreme Court agreed with the store. It held that the last part of the judge’s instructions could erroneously allow a jury to find any actions committed during employment create liability for the employer, even if not in the ordinary course of the business or within the scope of the employee’s authority.
Further Modification in Some Jurisdictions
As noted above, the trend of the courts in many jurisdictions has been to expand the reach of respondeat superior liability. Some states have modified the doctrine to abandon the motivation test (whether there was intent to further the employer’s business). In a case involving an intentional tort, the Minnesota Supreme Court held that when employee acts are foreseeable, related, and connected with employee duties and were committed during work-related limits of time and place, they can be the basis for employer liability. Critics have argued that the employer may thus become the guarantor of employee conduct.
In a 1999 Oregon case, even time and space limitations were ignored. A supervisor coaxed another female employee to his house to help him “grieve for his brother,” then made “unwelcome advances.” Their employer was held liable. Even if the conduct was totally outside of work, the jury found that the work relationship was a “necessary precursor” to the conduct.
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