Abstract
Modern day vicarious liability cases often address the liability of enterprises and institutions whose agents have committed intentional acts. Increasingly, when an employer is sued, the line is blurred between the principal’s vicarious liability for its agent’s acts and its own direct liability for hiring and/or failing to supervise or control its agent.
In this Article, I argue that, as a form of strict liability, vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer’s preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further elaboration. The risk of under-detection provides a strong justification for the expansion of the scope of institutional or employer vicarious liability.
Sharkey, Catherine M, Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages (October 2, 2018). Valparaiso University Law Review, volume 53, 2019.
First posted 2018-10-26 05:28:14
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