ABSTRACT
… 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. The under-detection rationale, moreover, has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers when their employees commit intentional torts. Specifically, I argue that the under-detection rationale correspondingly strengthens the case for punitive damages in direct negligence cases and weakens the case for punitive damages imposed in vicarious liability cases. Focusing on under-detection, vicarious liability acts as a quasi-substitute for punitive damages. And seen through this lens, Restatement (Second) of Torts § 909, Punitive Damages Against a Principal – typically defended as a ‘complicity rule’ limiting the imposition of vicarious punitive liability on fairness grounds – is justified on economic deterrence grounds by allowing punitive damages coupled with direct negligence liability but limiting its operation in the vicarious liability sphere.
Catherine M Sharkey, Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages, 53 Valparaiso University Law Review 1 (2020).
First posted 2020-04-02 05:41:33
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