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23

Please Pass the Liability: Respondeat Superior and Nondelegable Duties

INTRODUCTION

The last two chapters have considered the allocation of liability in cases involving “joint tortfeasors.” As those chapters indicate, when more than one party's negligence contributes to an injury, each negligent party is liable, but may be able to seek contribution from other tortfeasors. This chapter addresses the related situation in which one defendant incurs liability, not due to his own negligence, but due to the negligence of another. We focus on two common examples of such “vicarious liability”: liability of an employer for the torts of its employees, and liability of one who employs an independent contractor for torts committed by the independent contractor.

RATIONALES FOR IMPOSING VICARIOUS LIABILITY ON EMPLOYERS

The common law has long accepted the premise that employers should be liable for the torts of their employees in the scope of employment. The premise is sufficiently entrenched to merit its own legal Latin, “respondeat superior,” which is loosely translated, “let the master respond.” While virtually all jurisdictions impose liability on employers for the torts of their employees, the rationales for the respondeat superior doctrine have varied.

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