ARTICLE: MAKING SENSE OF RESPONDEAT SUPERIOR: AN INTEGRATED APPROACH FOR BOTH NEGLIGENT AND INTENTIONAL CONDUCT * Skip over navigation
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Copyright (c) 2005 Southern California Review of Law and Women's Studies
Southern California Review of Law and Women's Studies

ARTICLE: MAKING SENSE OF RESPONDEAT SUPERIOR: AN INTEGRATED APPROACH FOR BOTH NEGLIGENT AND INTENTIONAL CONDUCT *



* 2005 Roszkowski and Roszkowski.

Spring, 2005

14 S. Cal. Rev. L. & Women's Stud. 235

Author

MARK E. ROSZKOWSKI and CHRISTIE L. ROSZKOWSKI **

Excerpt

I. INTRODUCTION

Lawsuits brought by third parties against employers for injuries caused by employees are among the most common civil lawsuits in the United States. Two general theories of recovery are used. 1 First, the employer may be held liable for its own intentional 2 or negligent conduct 3(for example, the employer's negligent hiring, training or supervision of the employee). Second, and much more commonly, an employer may be held "vicariously" or "derivatively" liable for the employee's tortious conduct under the doctrine of respondeat superior. 4

The test for respondeat superior liability is deceptively simple, derived in most states from section 219(1) of the Restatement (Second) of Agency:

"A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." 5 Thus, to recover under this doctrine, the plaintiff must prove: (1) the existence of a "master-servant" relationship between the principal and agent; 6 and (2) that the tort was committed while the servant was acting within the scope of employment. This article assumes the existence of the master-servant relationship and focuses on the second prong: scope of employment.

A. THE SCOPE OF EMPLOYMENT PROBLEM AND ITS PROPOSED SOLUTION

The issue of scope of employment has proven to be one of the most troublesome issues in modern tort law. 7 Given the volume of cases decided over the decades, one would expect the law to be well-developed, clearly articulating for most cases when an employee's conduct ...
 
 
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