Respondeat Superior

Businesses are sometimes responsible for the acts of their employees. Why and how? Pennsylvania courts have said, “Generally, there is no duty to control the acts of a third party unless the ‘[d]efendant stands in some special relationship with either the person whose conduct needs to be controlled or… with the intended victim of the conduct, which gives the intended victim a right to protection.’” Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007) (quoting Brezenski v World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa. Super. 2000). Many states have adopted the theory of respondeat superior via the Restatement Second of Torts and the Restatement Second of Agency. A plaintiff needs to show that an employee’s conduct happened during the course of and within the scope of the employee’s employment. “This vicarious liability extends to cover intentional and criminal acts committed by an employee unless the act is done for personal reasons or performed in an outrageous manner.” Harris v. KFC U.S. Properties, Inc. 2012 WL 2327748 (E.D. Pa. June 18, 2012). However, in many states, vicarious liability will not extend to intentional or criminal conduct of the employee.

📖 Read the Harris case. Note how Judge Stengel first states that you need to define the act that you will test and then clearly lays out the elements. An employee’s conduct is within the scope of employment if:

(1) it is of a kind and nature that the employee is employed to perform;

(2) it occurs substantially within the authorized time and space limits;

(3) it is actuated, at least in part, by a purpose to serve the employer; and

(4) if force is intentionally used by the servant against another, the use of force is not unexpected by the employer.

Notably, if an employee injures someone while on the clock, element 2 is easily met. However, the others are more difficult and can depend on how you define the act. Do you take a narrow view of the “act,” or do you view the elements through the sum of numerous acts together? As noted in the Harris case, the act should be viewed as the aggregate of the employee’s actions, otherwise, you may construe the act so narrowly as to exclude the actual tortious act.

Understand that respondeat superior is a means of “imputing liability to an employer for the actions of its agents or employees.”  It is NOT its own cause of action. So you can say an employer is vicarious liable for a tort committed by an employee but respondeat superior is not a cause of action itself. See, Care v The Reading Hospital and Medical Center (which is a wire-tapping case surprisingly)!