Respondeat Superior

Overview

A legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.  Typically when respondeat superior is invoked, a plaintiff will look to hold both the employer and the employee liable. As such, a court will generally look to the doctrine of joint and several liability when assigning damages

Jurisdictional Differences

There is not a national standard for respondeat suprerior. Because states create their own standards for the doctrine, different jurisdictions will use different tests to prove respondeat superior. However, most jurisdictions will use 1 of the following 2 tests:

  1. Benefits Test
    1. When the employee’s social or recreational pursuits on the employer’s premises after hours are endorsed by the express or implied permission of the employer and are conceivably of some benefit to the employer, then the employer is liable for harm resulting from the employee’s actions.
  2. Characteristics Test
    1. If the employee's action is common enough for that job that the action could be fairly deemed to be characteristic of the job, then the employer will be liable for harm resulting from the employee’s actions.

Strict Liability Comparison

A court will choose to apply the doctrine of respondeat superior to an employer, regardless of how closely the employer was monitoring the employee. As such, respondeat superior may be compared with strict liability.  

Exceptions

Independent Contractors

Respondeat superior applies to employees, but not to independent contractors

The Third Restatement of Torts helps to outline the difference between an employee and an independent contractor for the purpose of respondeat superior. It presents a fairly thorough balancing test

  1. the extent of control that the agent and the principal have agreed the principal may exercise over details of the work
  2. whether the agent is engaged in a distinct occupation or business
  3. whether the type of work done by the agent is customarily done under a principal’s direction or without supervision
  4. the skill required in the agent’s occupation
  5. whether the agent or the principal supplies the tools and other instrumentalities required for the work and the place in which to perform it
  6. the length of time during which the agent is engaged by a principal
  7. whether the agent is paid by the job or by the time worked
  8. whether the agent’s work is part of the principal’s regular business
  9. whether the principal and the agent believe that they are creating an employment relationship
  10. whether the principal is or is not in business.
  11. the extent of control that the principal has exercised in practice over the details of the agent’s work."

Federal employees

Under the Westfall Act, federal employees will not be held liable for wrongdoings committed during the scope of their employment. 

Further Reading

For more on the doctrine of respondeat superior, please see this Santa Clara Law Review article, this Michigan Law Review article, and this Louisiana Law Review article