Thus, if the enterprise were not liable for the actions of its employees, corporations would never be liable at all unless the tort were committed pursuant to a vote of the board of directors. On the first view outlined above, respondeat superior is a logical corollary of agency law and tort law and does not require special justifications beyond the ordinary justifications for those two areas of law.
Agency law is foundational to all modern economies: it is the basic set of rules that allows one person to act on behalf of another and, therefore, one person to employ another.
Tort law to oversimplify this course has three basic functions: a criminal law-like function of condemning socially inappropriate behavior, a contract-like function of compensating people who have been injured by the actions of others, and a market-regulatory function of helping to ensure that private costs and therefore prices reflect social costs in order to harness markets to the public good.
The sound justifications for respondeat superior stem from the basic functions of the legal systems of which it is an intrinsic part.
Firms can behave in socially inappropriate ways just as individuals can and often far more so ; tort law must be able to condemn anti-social firms for the same reasons it must be able to condemn anti-social individuals. And firms are far more important players in the capitalist market than individuals-if tort is necessary to correct market pricing failures, it is essential that it apply to firms.
On this view, respondeat superior is a recognition of the reality of firms: that the enterprise is responsible for what its parts and members do. In contrast, the second view, which sees respondeat superior as an exception and aberration to tort law, demands a special explanation. It is hard to find a convincing one in the literature or cases. Respondeat superior is sometimes defended by invoking the desire to compensate victims or spread costs. Unquestionably, these are important if subsidiary goals of tort law, reflecting powerful moral and political instincts.
Citizenship is a common enterprise; we have some degree of responsibility towards one another; decent societies do not allowed injured people to suffer without help. But tort law generally takes an extremely limited view of the responsibility of citizens to help each other.
In particular, as a matter of tort law the baseline is always lack of responsibility, not the opposite: unless the plaintiff proves a duty and its breach, the defendant has no tort obligation to help. Injury alone makes no claim in tort. Tort has no principle that those who are injured must be compensated or that those who are solvent must help-if we accepted those moral principles consistently, we would replace tort by a universal health insurance system financed by progressive taxation.
Tort requires a finding that the defendant caused the injury, not just that the plaintiff is hurt and the defendant is solvent. Tort law, instead, makes compensation a goal only after causation or fault has been established. The injured may have a claim, but in tort law the claim is only against those who have injured them. It is a private law rule, regulating the relations between individuals not individual and society.
On the tort view, the first issue must always be responsibility of the tortfeasor, not victimhood or need of the tort victim. Sometimes, commentators state that respondeat superior is justified by the compensation goal, because employers purportedly are more likely to be solvent or insured than employees and therefore victims are more likely to be compensated if employers are liable.
But this reasoning proves either too much or too little. Too much, because if we accepted this argument, respondeat superior would be woefully inadequate: the moment you accept the premise that need alone demands a response, you must reject the fundamental tort principle of limited responsibility.
Similarly, if the problem were lack of insurance, we could simply require insurance, either through a universal governmental program or as in the automobile context by statute mandating private insurance. Too little, because no doctrine of respondeat superior that I am aware of depends on any facts about solvency or insurance.
Indeed, many small businesses are deliberately organized as near-insolvent corporations, with the owner removing all profits as they are generated. Respondeat superior has never been extended to the owners of corporations: it is the corporation, not its shareholder, that is liable, even when it is the owner, not the corporation, who is solvent.
Cost spreading defenses often suffer from the same sloppy thinking. But ultimately, this is a justification for a social security, workers compensation and health insurance system, not for tort. Tort never cost-spreads in a satisfactory fashion: no tort doctrine inquires directly into whether specific tortfeasors or victims are or could be insured, can include costs in prices or otherwise are able to transfer their costs to others.
Arguments based on incentives or cost spreading can be made in a more careful way that seems much more persuasive, especially if we recognize that respondeat superior is not an exception to the general tort rules but rather simply the obvious way to apply them to organizations. One of the most important justifications for tort law as a whole is that it corrects a serious market failure.
Capitalist markets function by allowing individual consumers to make individual decisions about purchases based on their own individual assessments of price and quality. But the market system only works if the prices charged in the market reflect the social costs of the product. Consumers will buy more of the product than they would if they had to pay the full cost, and society is worse off. The same is true, in reverse, if producers have to pay costs that are not associated with their product.
When a product causes an accident, the accident is one of the social costs of production just as much as is the energy, labor, technology and raw materials it uses. Coal mining accidents are part of the costs of using coal. So is pollution. But if coal producers do not pay for the accidents or pollution they cause, coal will be priced too cheaply, and consumers will use more of it relative to other energy sources or conservation than they would if they were paying its full costs. Tort helps to solve this problem by forcing tort-feasors to pay for the accidents they cause and thus making the accidents a cost of producing the product.
Consumers, thus, will pay for the accidents caused by the product in its price, just as they pay for the raw materials, labor, energy and technology used in producing it. Paying the full price, they will make better choices between alternative products. Rational amoral profit-maximizers, or ordinary bureaucrats who believe that their job requires them to act as if they were rational profit maximizers will decide not to prevent the accidents.
Consumers buy products that cause accidents, because they are cheaper. And the world is an uglier place for it. Assumption of Risk in Personal Injury Cases. Economic Damages in Personal Injury Cases. Punitive Damages in Personal Injury Cases. Strict Liability in Personal Injury Cases. Vicarious Liability in Personal Injury Cases. Nursing Home Abuse and Negligence.
Workplace Accidents. Settlement Negotiations in Personal Injury Cases. Working With a Personal Injury Lawyer. Find a Personal Injury Lawyer. Justia Legal Resources. Find a Lawyer. Law Students. US Federal Law. Because states create their own standards for the doctrine, different jurisdictions will use different tests to prove respondeat superior. However, most jurisdictions will use 1 of the following 2 tests:.
A court will choose to apply the doctrine of respondeat superior to an employer, regardless of how closely the employer was monitoring the employee. As such, respondeat superior may be compared with strict liability.
Respondeat superior applies to employees, but not to independent contractors. The Third Restatement of Torts helps to outline the difference between an employee and an independent contractor for the purpose of respondeat superior.
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