Friday, August 20, 2021
Daniel Harris has posted to SSRN The Rival Rationales for Vicarious Liability. The abstract provides:
Vicarious liability means holding one person responsible for the misdeeds of another just as if the wrongdoer and the defendant were the same person. There are two competing rationales for the idea. The agency rationale is based on the idea that agents act as extensions of their principals’ legal personality. According to the agency rationale, vicarious liability requires proof the wrongdoer was an agent, apparent agent, or employee of the defendant (the exact relationship depending on the type of tort) plus proof the misconduct occurred within the scope of the agency. Under an alternative approach that Dean William Prosser dubbed the “modern justification of vicarious liability,” agency does not matter. Corporate defendants must pay, regardless of fault, for enterprise related torts, even if the actual wrongdoer was an independent contractor or an employee acting outside the scope of employment. Scholars often present the modern justification as the law and ignore the agency rationale or treat it as outmoded. This Article will show that, in fact, the agency rationale is supported by powerful arguments and is generally followed by the courts (outside of California).