This article is written by Lavanya Gupta, a student at the University School of Law and Legal Studies, GGSIPU, Delhi. This article seeks to elucidate on the doctrine of respondeat superior covering employer’s liability under law of torts in the U.S.A.

It has been published by Rachit Garg.

Introduction

The employer’s liability under the law of torts in the USA is covered under the doctrine of respondeat superior. The employer’s liability under the law of torts is an extension of their responsibility to their customers in terms of the injuries or damages caused to them by the behavior of their employee. Employees are, in essence, an extension of the establishment. 

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The concept of liability is an important part of consumer rights, modern day business models are structured in such a way as to avoid lawsuits and consumer claims.

The objective of this doctrine is to hold someone responsible who has the better means to satisfy the damage claim of the customer, who more often than not is the employer due to their financial position as compared to the staff. This doctrine holds someone else (the employer) responsible for the actions of the employee.

However, for the employer to be held liable, it is mandatory for the action of the employee to be done in the course of business, and that act should benefit the employer in some way.

What is an employer’s liability

The US law of torts covers employers’ liability under the doctrine of respondeat superior, which in Latin means that the master must answer. 

This means that the employer, i.e., the master, will be answerable for the wrongs done by his employees, and the employer will face liability for any tort committed by the employee.

Whenever an aggrieved person invokes the doctrine of respondeat superior in claims of torts, they usually try to hold both the employee and the employer liable, thereby increasing the probability of the settlement of their claims. This dimension adds the concept of joint and several liability whenever the court tries to assess damages.

The court has to apply the doctrine of respondeat superior irrespective of how closely the employee was being monitored by the employer or how well the safety norms to prevent any accidents have been complied with in the establishment.

The doctrine of respondeat superior can be applied only if these three preconditions are satisfied:

  1. The employee who caused the damage is a current employee of the establishment.
  2. The injury caused by him was done during an act within the course of business and was within the scope of employment.
  3. The activity which resulted in damage was in some shape or form causing some benefit to the employer.

Factors to be considered while assessing employer’s liability

There are no fixed standards to assess employer liability in torts, and these standards are not uniformly applied across the United States, instead, each state has its own standards for assessing liability. There are, however, two main tests that are frequently used across the states.

Benefits test

In this test, if an employee is committing any social or additional recreational activity after working hours, for which he has the express or implied permission of the employer and the employer stands to gain something from this act, then the employer will be liable for any tort committed during the act, given that such an activity is committed on the employer’s premises.

Characteristics test

In this test, if the actions done by the employee are common enough to be considered a normal part of day-to-day business transactions or a part of the normal course of business, then the employer will be liable for the same.

Exceptions to employer’s liability

Independent contractors

Independent contractors are the persons hired by the employers to do their work, but the employer has no control over how the task is done. As the employer has no control over the task or how it is done, he cannot be held vicariously liable for the acts of the contractor. There are several factors that determine whether the agent can be considered an independent contractor. These factors are:

The amount of control exercised by the employer 

In terms of directions given, whether the tools are supplied by the employer, whether the employer has the right to direct the procedure on how the work is supposed to be done and whether the employer has control over the details in the agent’s work.

The level of skill required

The level of skill required to do a particular task in a given occupation also helps determine whether an employer is liable. If the task requires a high level of expertise that the employer does not possess, then the employer will not be liable for the same. The following questions are likely to occur- 

  1. Is it an occupation requiring a high level of skill? 
  2. Whether the employer is competent to give advice or control the details of the job? 
  3. Whether the agent is engaged in a distinct occupation, or whether the work can customarily be done without the principal’s supervision.

For example, the work of a doctor requires a high level of skill, and the administration can only control the procedural formalities like taking proper consent, etc., but they have no control over the doctor’s methods of treatment, diagnosis, or conducting surgeries, etc.

Certain acts of federal employees 

In the case of federal employees in the US, the applicability is covered under the Westfall Act (1988). As per this Act, for a tort committed by a federal employee in the course of employment, the employee will be held liable as a defendant, and later, the United States shall be substituted as party defendants.

In 1988, the Supreme Court in the case of Westfall v. Erwin (1988), held that the employees will not be given complete immunity until the challenged act involved the use of discretion, this decision, in essence, made the employees more susceptible to lawsuits if the act did not involve governmental discretion like in the case of flying an aeroplane, etc.

In the case of Gutierrez de Martinez v. Lamagno (1995), it was noted that the Westfall Act was made subsequent to the Erwin judgment in an effort by the Congress to limit the liability of the government only to acts that were directly within the scope of employment, thereby excluding the scope of discretion.

To understand the term ‘scope of employment’, one has to go into the separate jurisprudence and standards determined by each state, therefore, whether the act falls within the scope of employment would depend on the place where the act took place and the rules of that state would apply.

As a general rule, the tortious act would fall within the scope of employment if it was the kind of act for which the employee was hired or if it was incidental to the act required in the course of employment.

An employee will not be outside the scope if they disregard a direct order or if they commit a heinous crime while on the job, in both of these cases, the employer will still be liable for the damages caused, even if these acts cannot be seen as a reasonable part of the scope of employment.

To get some understanding of the scope of employment under employment law, an example can be taken from the case of Council on American Islamic Relations (CAIR) v. Ballenger (2006) of the Washington District of Columbia Circuit, which involves the application of Washington, D.C., employment law. In this case, it was held that the statement made by a congressman about his personal life is directly related to his ability to carry out his representative activity.

Whereas, in the case of Carroll v. Trump (2022), it was held by a New York Court, that a congressman’s statement on his personal life cannot be said to be within his scope of employment.

These two decisions, though contradictory in nature, depend on the jurisprudence of the state and their application to the facts of the case. It is the jurisprudence as well as the employment regulations of a state that will decide whether a person falls into the category of a federal employee or not. 

Certain other exceptions to this doctrine are made according to state jurisprudence, but the aforementioned two exceptions are generally allowed uniformly across the United States.

Application of the concept of employer’s liability in different states of the United States

The questions of whether the employer is liable under the doctrine of respondeat superior and, if so, to what extent and what will be the amount of damages paid by the employer, have different answers depending on the state and its jurisprudence. We give some examples highlighting these differences.

California 

The employer is vicariously responsible for any negligent act committed by the employee in the state of California. The state of California does not allow the employer to not be liable for the act merely because it was not a direct consequence of the business. In the case of John R. v. Oakland Unified School District (1989), it has been held that an employer is not precluded from liability, merely because the ultimate object of the tortious act was not related to the employment. In the same case, it was held that an employer will be liable for the unauthorized acts of his employee even if they cause no benefit to the employer.

The ‘coming and going rule’ and its ‘special errand’ exception are covered in California. As per the ‘coming and going rule’, the employer will not be liable for any tort committed by the employee while commuting to and from work. The exception to this rule is the ‘special errand’ rule, i.e., the employee was commuting for a special errand. In the case of Morales-Simental v. Genentech (2017), it was held by the California court of appeals that the special errand rule will not apply if the employee is completing a duty that he was not asked to do by the employer after office hours, even if the said task amounted to work for the employer’s benefit, which in this case was collecting resumes.

Ohio 

In terms of a jurisprudence developed in the case of corporate mens rea by a sixth circuit ruling in the state of Ohio. This difference was noted by Robert Anello in 2014, who said that the US was stuck in a three way circuit split, while the second, seventh and ninth circuit applied the concept of collective knowledge which charges the company for the acts of its agents even if it was not involved in the act and holds the company liable as well, this is generally applied to cases where one particular person committing the fraud is not identified, the fifth and the eleventh circuit also held the employer liable and applied the concept of respondeat superior in cases of securities fraud while the sixth circuit rejected both the doctrine of collective knowledge and respondeat superior  and instead applied a third approach which focuses on the person who made the misrepresentation, their position, mental state, who advised or encouraged them etc.

Virginia

In the state of Virginia, to establish the doctrine of respondeat superior, as held in the case of Master Auto Service Cooperation v. Bowden (1942), three elements need to be proved, first, that an employer-employee relationship existed, second, that at the time of the commission of the tort, the employee was doing the employer’s business; and third, that the employee was acting within the scope of his employment. In the state of Virginia, most importance is given to the third element, which is examined by the court in each case; whether the case falls in the category of a tort for which the employer will be liable depends on the result of this examination. 

District of Columbia

The three elements required to prove respondeat superior are similar to those in the state of Virginia; in the third element, however, this state has a fixed, wider interpretation in the sense that it includes all acts that are incidental and done in furtherance of the employer’s business. Furthermore, acts that can be classified as a temporary detour from the tasks assigned to them by the employer are also included.

Texas

The concept of vicarious liability under Texas law will apply to only those cases where the third party bears a legal responsibility for the acts of the wrongdoer. This concept covers employers, parents or legal guardians, and alcohol vendors. In the case of employers, every act committed by their employee that falls within the scope of employment makes the employer vicariously liable. 

Texas also has the concept of dram shop law, wherein alcohol providers are held vicariously liable for any accidents caused by overserving their patrons. 

Florida

The courts in Florida have included acts done within the scope of employment under vicarious liability, and they have further expounded on the concepts of ‘frolic’ and ‘detour’ and in the case of Morrison Motor Co. v. Manheim Services Co operation (1977), the Court held that an employer will be liable for the act if it is performed within the space and time limit of employment, meaning thereby, that this would include frolic but not detour as detour means going completely out of the space and time limit. For a better understanding, in the case of a truck driver supposed to transport goods from one point to another, who is supposed to do so through a fixed route, if he changes the route, he moves out of the space limit of the employer, and this is a detour, and the employer will not be held vicariously liable for any act of the truck driver done on that route. However, if the truck driver remains on the same route and gets into an accident with another vehicle due to overspeeding, this is a case of frolic, and the employer will be vicariously liable for this act.

Colorado

Under Colorado law, as well, the acts that come under the concept of scope of employment make the employer vicariously liable for the acts of the employee. The interpretation of scope is however slightly different, in the sense that acts of frolic, detour, and intentional torts are exempted from vicarious liability. As per Colorado law, frolics are those acts done by an employee that have nothing to do with the employment, whereas detours are when an employee acts temporarily outside the course and scope of employment. Intentional torts are those acts that the employee knows are outside the course of employment but still does anyway. For example, an employee getting angry and punching a customer would not make the employer liable for this act.

In the case of co owners or business partners as well, every partner is vicariously responsible for the act of one partner if it is done in furtherance of business or in the interest of the business.

Under Colorado law, the damages under vicarious liability can include medical bills, lost wages, pain and suffering, and any other damage that can be proved in a personal injury lawsuit.

The aggrieved party is allowed to collect the award only once, and in the case of multiple defendants, he/she can collect it either from one party or from every party defending the lawsuit.

Missouri

A significant change has taken place in recent vicarious liability jurisprudence in the state of Missouri in the year 2022. The state followed the McHaffie rule. According to this rule, the plaintiffs cannot raise a direct claim against the business, if the business has already admitted its liability under vicarious liability. This rule finds its origin in the 1955 ruling of the Missouri Supreme Court in the case of McHaffie v. Bunch (1955). This rule meant that once the employer accepts their liability under the vicarious liability rule, they cannot be sued for other direct claims arising against them out of the act of their employee.

This rule was deliberated upon by the Missouri Supreme Court in the case of McQueen v. Green (2022), where the employee was supposed to transport some equipment but realized that it had been loaded incorrectly. The employer informed the company about the same, whose representative asked him to drive out without reloading the equipment. The incorrect loading resulted in an injury to another person on the road. It was found by the Court that the employer can be held directly liable for an act of their employee if the injury is a direct cause of the employer’s direct actions or when the injury is a result of the employer’s negligence, like negligent hiring, negligent supervision, and disciplinary failures.

Oregon

The state of Oregon includes claims directly against employers as well as vicariously against the employers. 

To determine vicarious liability, a special relationship in terms of fiduciary, contractual, or legal relationship needs to be shown. This special relationship needs to be established under the Fazzolari test, laid down in the case of Fazzolari v. Portland School District (1987). As per the test, three conditions need to be proved, first, if a relationship or a status exists between the parties, second, whether a duty beyond that of ordinary care exists in that relationship; and third, if such a relationship or standard does not exist, then the status of the parties is to be examined based on principles of general negligence and foreseeability of risk.

Direct claims against an organization can arise if the act is the result of negligence in hiring, supervision, or training. It can also include cases where the organization knowingly hired a person who could pose a risk or danger and cause unreasonable harm to other persons, and the organization could have discovered such a danger through a reasonable investigation while hiring.

In the case of vicarious liability claims, the plaintiff is supposed to establish a master-servant relationship between the employee and employer, and in such cases, it needs to be proved that the act of the employee was done within the scope of the employment and with an intention to cause benefit to the employer.

Reasonable foreseeability is another important aspect of vicarious liability claims, and there are very low chances of an intervening act negating the claim of the plaintiff against the employer.

Defences against employer’s liability

Contributory and comparative negligence

A contributory negligence defense is when the employer alleges that the injured person themselves contributed to the negligence caused to them. 

Through this defense, if the employer is able to prove that the person was substantially responsible for the injuries he caused himself, then the employer may not be liable to pay all the damages.

Contributory negligence can also be used as a defense to reduce the quantum of damages to be paid, it is for the court to decide the amount of negligence on the part of the person seeking damages and the effect of such negligence on the amount of damages to be paid. This facet of contributory negligence is also known as comparative negligence.

Therefore, the main difference between the defense of comparative and contributory negligence is that in comparative negligence, the damages may be reduced, while in contributory negligence, no damages may be paid.

For example, in the case of a road accident, where a motorcyclist gets hit by a truck, if it is proved that the motorcyclist was speeding, this amounts to comparative negligence and the quantum of damages may be reduced, but, if it is proved that the motorcyclist entered an area where he was not authorized to enter, like on a construction site, where the truck was allowed to enter, this amounts to contributory negligence and the motorcyclist may not be paid any damages.

Causation and foreseeability

Causation is of two types, the first being cause in fact, where the injured party needs to prove that the injury or damage would not have occurred had the employee not done the act.

Whereas, in the second type of causation, i.e., the proximate cause, the injured party has to prove that the injury or damage caused was reasonably foreseeable as a consequence of the employee’s actions.

Cause in fact is direct and easy to prove, whereas, it is difficult to prove proximate cause. The employer is liable to pay damages if the actions were within the scope of employment and were reasonably foreseeable. Proximate cause also includes the employer’s negligence in hiring, training, retaining, and supervising the employee.

Therefore, the fact that the damage was not reasonably foreseeable in the employee’s scope of employment can be used as a defense by the employer to escape vicarious liability.

Assumption of risk

Under this defense, if the person knew about the possible damages, nature of the work, and possible risks involved, but still decided to allow the act to be done, they cannot later sue the employer for damages.

The person should voluntarily, and with complete knowledge of the risk involved, agree to the act, the assumption of the risk should be clear and should be made expressly or impliedly. Express assumption can be in the form of written consent or signing a waiver form, as in the case of adventure sports activities like skydiving, whereas, implied assumption can be in the form of conduct. For example, proceeding for a roller coaster ride despite having a heart condition where a warning sign clearly states a potential health risk to heart patients.

Types of damages

In case, an employer is held liable to pay for damages, he may be asked to pay damages in one of the following forms:

Punitive damages

These are the damages that are not intended to compensate the injured party but rather to punish the defendant for their wrongful conduct. Often, these types of damages are not necessary in cases of vicarious liability because, in essence, the damages are caused by the employee’s negligence and not the employer’s.

Compensatory damages

These are the damages that are intended to restore the injured party to their original position and to pay for the losses that occurred to them. These can take the form of monetary compensation, payment of medical bills, etc.

Conclusion

The concept of vicarious liability in the US law of torts is covered under the doctrine of respondeat superior, which means that the employer should be held liable for the acts of the employee. The main objective behind this doctrine is to pay adequate compensation to the injured party, which would be possible due to the better means afforded by the employer rather than the employee, who may not be able to pay the requisite damages due to a lack of resources. Essentially, this doctrine covers the interests of consumers availing of any services from a business owner.

This doctrine, however, is not an absolute rule and is subject to certain defenses that are allowed to the employer in the interests of justice. The method of calculating the amount of damages and the liability of the employer differs from state to state. This article, however, tries to cover some of the basic rules of damage and liability, which form the groundwork for different applications by different states in cases of respondeat superior.

Frequently Asked Questions (FAQs)

What are the circumstances under which respondeat superior can be applied?

This doctrine can be applied only in cases of an employer-employee relationship where the employer has control over the actions of the employee and the act causing damages was done in the course of employment.

Where is the doctrine of respondeat superior not applicable?

It is not applicable in cases of principal-agent relationships or where the employer has limited control over the actions of the employee.

What is the other name for respondeat superior?

The doctrine of respondeat superior is also known as the master-servant rule.

References

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