Wednesday, June 13, 2012

Respondeat Superior

Vicarious liability shows up in a variety of contexts on the MBE. One of those contexts involves Respondeat Superior, or the potential liability of an employer for the tortious acts committed by his employee.

You'll first want to determine whether the acts committed by the employee were within the scope of the employment relationship. A question might provide you with facts suggesting that the employee had made a slight deviation from his employer's business for the employee's own purposes. A minor deviation should not prevent you from finding that the employee was acting within the scope of employment for purposes of finding the employer liable.

A point to keep in mind is that, generally, if the tortious act of the employee rise to the level of an intentional tort (as opposed to merely negligent conduct), it is usually the held that such act is not within the scope of employment, and therefore the employer is generally not liable. There are a few exceptions to that rule, however.

First, if force is authorized in the employment (for example, a bouncer in a bar), then such force by the employee can provide a basis for holding the employer liable. An employer can also be held liable for the intentional torts of his employee if the job that is the basis of the employment is one that tends to generate friction (such as a bill collector). Finally, if an employee is furthering the business of the employer (for example, an employee who is asked to remove customers from a place of employment because the customers are causing a disturbance), then the employer can be held liable if the employee uses unlawful force in furthering the business.

One final point to keep in mind is that even if the facts present a situation in which the employer should not be held vicariously liable (for example, if the employee commits an intentional tort, and one of the above exceptions does not apply), you should still consider the possibility that the employer may be directly liable (as opposed to vicariously liable), for his own negligence in hiring or supervising that employee.


  1. I don't understand what this entails? Can you give an example?

    "The federal government generally is immune from liability for assault, battery, and libel and slander, as well as certain other enumerated torts. Through the Federal Tort Claims Act, the United States has waived its immunity for tortious acts, and the federal government may now be held liable to the same extent as a private individual. However, the Act spells out several situations where this immunity will still attach, and the United States is still immune for certain enumerated torts. Immunity still attaches for: (i) assault; (ii) battery; (iii) false imprisonment; (iv) false arrest; (v) malicious prosecution; (vi) abuse of process; (vii) libel and slander; (viii) misrepresentation and deceit; and (ix) interference with contract rights. Infliction of emotional distress is not one of the enumerated torts; hence, immunity is waived for that tort unless the conduct also falls into one of the enumerated torts above."

  2. I would just note that the Federal Tort Claims Act allows the US to be sued for certain torts, but that Act does not apply to the torts specifically listed with roman numerals, so the US still cannot be sued for those specific torts. In other words the US is immune in that respect.

    By the way, did you mean to post this in another post? :)