סמינר מחלקתי עם פרופ' קתרין שרקי

Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages

CSH

מיקום: חדר הסמינרים

קובץ מצורף

 

 

the paper title/abstract:

Institutional Liability for Employees’ Intentional Torts:
Vicarious Liability as a Quasi-Substitute for Punitive Damages

Modern day vicarious liability cases often address the liability of enterprises and institutions where agents have committed intentional acts.  Increasingly, when corporations or employers are sued, the line is blurred between the principal’s vicarious liability and its own direct liability. 

From an economic deterrence perspective, the imposition of strict liability vicarious liability induces employers to adopt cost-justified preventative measures, including selective hiring and more stringent supervision and discipline, and, in some instances, to truncate the scope of their business activities.  Negligence-based direct liability likewise induces employers to adopt cost-justified preventative measures (without constraining activity levels to the degree that strict liability does).  This raises two questions: why doesn’t direct employer negligence liability suffice, in terms of deterring employees’ intentional torts?  And conversely, so long as there is strict liability vicarious liability is there any need for direct negligence liability at all?

I argue that 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 attention.  It 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.