Latin terms are commonly used in law and while they may sound fancy, I have to say that their doctrines are pretty straight-forward and pretty clear. The doctrine that I would like to speak about today is known as Respondeat Superior. Essentially it means that the employer is responsible for the actions of its employee in the course and scope of employment of that employee. It is interesting that when I have reviewed cases that have been prepared by younger lawyers, there seems to be an overemphasis on the notion of Respondeat Superior. I say that because most of the time the employer-employee relationship will not be a disputed issue. There are times, however, that it will be disputed and, if so, it has to be dealt with in an appropriate fashion. Not often is that the case, however.
Where it is conceded or granted, there need not be any concern about this commonly understood doctrine. It means that the employer will be liable and it means that the employer’s insurance policy will be responsible if everything else is proven. What does everything else mean? It concerns the underlying negligence; that is, the negligence of the employee. It all depends on the facts. If the facts are very straightforward, for example, that the bus driver was driving in the course and scope of his employment, then it will be clear liability on the part of the bus company, assuming that the employee was driving negligently and that negligence caused the accident. This is Respondeat Superior.
The connection between employer and employee need not be an undue focus in the vast majority of cases. Happily, the employer’s insurance policy will come into play. In fact, when I am dealing with a case where there is Respondeat Superior, I may not even name as a defendant, the employee. In the hypothetical of the bus company and bus driver, I may feel it more advisable to name just the bus company.
As I said, there are exceptions to this legal concept. Respondeat Superior is often known as vicarious liability. The employer should be held vicariously liable for the torts or the negligence of its employees committed within the scope of employment according to case law in Massachusetts and really in every other jurisdiction in the United States. Recently the highest court of Massachusetts dealt with the scope of employment doctrine in a case known as Lev v. Beverly Enterprises, 454 Mass. 237 (2010). In it, there was a meeting in a restaurant between the employer and employee and then the employee left to go home once the meeting had been concluded. That invokes one of the exceptions, the exception is known as the comings and going rule. When an employee is going to work or coming home from work, the employment relationship is in most instances deemed not to have started or not to have continued. Thus the employer was not to be responsible once the meeting in that restaurant was over. That employee went home and when the accident happened on that ride there was no vicarious liability, i.e. there was no Respondeat Superior implicating the employer. This has major insurance implications because there will not be a large employer insurance policy at play.
Right now I am dealing with a case where there is a dining service courier who caused my client’s accident. My client was a pedestrian who was hit by the speeding courier. In doing discovery, I learned that the company compensates a driver for the number of deliveries he/she makes. The driver has a clear incentive to go fast and not to be as cautious as he or she might be if the compensation structure were different. If the negligence is clear on the driver, why do I discuss the employer’s policy of paying the employee to create an incentive to go fast? After all, I have often blogged that such evidence would not be admissible because if the negligence is conceded by the defendant, a trial judge typically does not want to hear of this background information. But things in law are not always so predictable and it is possible that I could introduce that evidence. Perhaps liability will be disputed and that will open the door to the significant issue of compensation, such that the more deliveries the more the bicyclist will be paid. It would indeed support the theory that the employee was riding his bicycle too fast. It all comes down to the facts of the case. What will be elaborated in a future blog is whether an egregious system of compensation, such as in this bicycle courier case, can be considered in a case where the defendant concedes liability. In any event, do not forget Respondeat Superior or vicarious liability when you are dealing with the negligence of an employee.
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