Vicarious Liability and Its Limits class outline 12204

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Vicarious Liability and Its Limits(class outline
12/2/04)

• The logic of the common law doctrine
• Vicarious liability, under scope of employment
  test, with exceptions for fellow servants
• Evaluation of strict liability rationales
• Challenges to common law doctrine
• Ira Bushey Sons (Friendly, J.)

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19th Century Vicarious Liability

• Background principal Respondeat superior
• Bounded by the scope of employment test.
• Exception Fellow servant rule
• Undermined by borrowed servant rule.
• Abrogated by statute.

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Why have strict liability

• Deterrent principle (better accident prevention
  than negligence, where . . . )
• Loss-spreading principle (distributive)
• Responsibility (causation) principle
• Adjudicative principle

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Strict liability and responsibility Respondeat
superior theories

• Deterrence Was the employer was in the best
  position to prevent (cheapest cost avoider)
• Distribution/insurance Whether the employer is
  in the best position to spread losses
• Responsibility
• Was the harm motivated by an intent to serve the
  employer. (Pre-Bushey test)
• Was it the employers activities that created the
  risk (Bushey test)
• Adjudication Whats the alternative? Can the
  court actually answer the relevant questions?

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20th Century Respondeat superior

• Scope of employment test
• Version 1 (traditional) actuated at least in
  part by a purpose to serve the master
• Version 2 (Bushey) accidents characteristic of
  the activities of the enterprise
• Shared limits Employees, not independent
  contractors scope of employment, not frolic and
  detour

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Possible attribution rules

• Act of official policy (board of directors)
• Act by member of control group
• Act by high level supervisors
• Act taken in furtherance of corporate purpose
• Corporate acts (contracts, products, hiring,
  etc.)
• Foreseeable risks
• Acts aided by the agency relationship.