Q about respondeat superior

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kswiss
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Q about respondeat superior

Postby kswiss » Fri Sep 17, 2010 1:06 am

Ok. So what if A is the owner of a convenience store. B is an employee. C walks in the store, there is a misunderstanding, and B throws a punch at C because B told him to "Guard the counter." B misses C and hits A instead, who breaks his cheekbone as a result and has to pay 10,000 for reconstructive surgery, and is ugly for the rest of his life. A court finds no privilege for B's behavior. Insurance doesn't cover intentional torts, so there is a 10k bill out there that someone is responsible for.

Under respondeat superior, A is liable for intentional torts of B while B is acting within the scope of employment. How does it work if the intentional tort damages A? Does A have to pay his own damages because he is vicariously liable for B's actions?

PirateCap'n
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Re: Q about respondeat superior

Postby PirateCap'n » Fri Sep 17, 2010 7:57 am

kswiss wrote:Ok. So what if A is the owner of a convenience store. B is an employee. C walks in the store, there is a misunderstanding, and B throws a punch at C because B told him to "Guard the counter." B misses C and hits A instead, who breaks his cheekbone as a result and has to pay 10,000 for reconstructive surgery, and is ugly for the rest of his life. A court finds no privilege for B's behavior. Insurance doesn't cover intentional torts, so there is a 10k bill out there that someone is responsible for.

Under respondeat superior, A is liable for intentional torts of B while B is acting within the scope of employment. How does it work if the intentional tort damages A? Does A have to pay his own damages because he is vicariously liable for B's actions?


He's only vicariously liable if he sues under a theory of vicarious liability. My guess is that A would simply sue B for the intentional tort without also adding in himself as a defendant to his own claim. (He isn't required to sue him for vicarious liability). Hope that makes some kind of sense in writing. It does in my head at least.

Edit: For an example. If I own a store and my employee punches me. I do not sue the store for vicarious liability. I simply sue the employee for the tort. Under the theory of respondeat superior, I probably could sue myself, but I wouldn't be required to nor would I be expected to. Vicarious liability is simply an option in a claim. It is never a requirement. You can always sue the employee without suing the employer (as best I can understand it).

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BarbellDreams
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Re: Q about respondeat superior

Postby BarbellDreams » Fri Sep 17, 2010 11:57 am

He wouldnt be responsible under vicarious liability because he would have no reason to sue under vicarious liability. He would sue him as a simple tort for negligence/recklessness unless he could prove intent. If intent is proven is an intentional tort of battery). Also, respondeat superior never applies if you can prove intent on the part of the eployer so if B hits C over an arguement A will not be liable under that exception (although there is another exception that if A hired B and knew of B having a record of violence or criminal history, A can still be liable even if B had intent).

Hope thats clear.

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kswiss
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Re: Q about respondeat superior

Postby kswiss » Fri Sep 17, 2010 12:16 pm

In some jurisdictions intentional torts are covered under respondeat superior as long as the employee is working within the scope of employment.

That makes sense though, that the person who is choosing chooses who to sue, and not the person being sued.

How about this, though: can the employee being sued claim that he was acting within the scope of employment and claim that his employer is liable under respondeat superior? Or is it only the one who brings suit that can sue under respondeat superior?

I'm just trying to get a feel for the boundaries of the doctrine.

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BarbellDreams
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Re: Q about respondeat superior

Postby BarbellDreams » Fri Sep 17, 2010 12:26 pm

This I am not as sure on but I feel that it is up to the plaintiff to choose who they want to sue and they would want to sue the employer who is rich over the employee who is not.

In regards to your other comment, I cant see how an intentional tort can possibly be within the scope of employment without some sort of excuse (defence of property, self defense, etc.). If I go to the post office, start arguing about the the NFL with an employee, he gets mad and jacks me in the face, I sure as hell cannot sure the Post Office even if the employee was doing work while we were talking.




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