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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.

It is sometimes said that the employer should pay because she can select and control her employees, and thereby prevent injuries due to negligence. It is doubtless true, as a general matter, that employers can reduce accidents by requiring their employees to exercise care, and that making employers liable for employees’ torts gives them an incentive to enforce careful conduct. However, employers frequently have no realistic chance of preventing a particular negligent act by an employee, as when an employee drives alone to pick up a package or goes out alone to repair an elevator. Employers cannot hover over their employees from minute to minute, and, as an actuarial matter, even employees who are carefully selected and supervised will be negligent on occasion, despite the employer’s most rigorous efforts to promote safety.[1] When they are, the employer is liable even if it took stringent measures to prevent accidents. This liability, in other words, is truly vicarious; it flows automatically from the employee’s tort, regardless of the care the employer exercised in selecting or supervising him.

More skeptical observers have suggested that respondeat superior liability is simply a device to provide a “deep-pocket” defendant able to pay the plaintiff’s damages. Prosser & Keeton at 500. Certainly it serves this purpose in many cases, since employers are more likely to have the resources to pay judgments than their employees. Yet, if vicarious liability is imposed solely to assure a deep pocket, it might equally well be imposed on any party with substantial resources: We could make millionaires vicariously liable for torts, or any insurance company with a headquarters building over 25 stories, or-what the heck-how about the government? Clearly, while assuring compensation is a factor, respondeat superior is intended to assure that such compensation comes from a party that is fairly made to pay it.