Respondeat superior
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Respondeat superior (
In a broader scope, respondeat superior is based upon the concept of vicarious liability.
In common law
The common law concept of respondeat superior has its roots in ancient Rome.[4] At the time, the concept applied to slaves, as that was the meaning of what has been translated as servants, and it applied if the slave could not pay himself for the act.[5] It was later expanded to apply to not only slaves but also animals and family members of the master of a family.[6]
In 1698, the doctrine was mentioned in
US Supreme Court Justice Oliver Wendell Holmes Jr. opined in 1891, "It is hard to explain why a master is liable to the extent he is for the negligent acts of one who, at the time, really is his servant, acting within the general scope of his employment. Probably master and servant are 'feigned to be all one person' by a fiction".[5] He was of the view that the doctrine was in opposition to common sense.[6] In 1916, the British attorney Thomas Baty wrote that the doctrine, which he called a "deep-pocket theory", was "derived from an inconsiderate use of precedents and a blind reliance on the slightest word of an eminent judge, and from the mistaken notion that his flights of imagination ... were actual decided cases".[6]
When applied to physical
Historically, the doctrine was applied in master–servant and employer–employee relationships. When an employee or a servant commits a civil wrong against a third party, the employer or master could be liable for the acts of the servant or employee when the acts are committed within the scope of the relationship. The third party could proceed against the servant and master; that is, the employee and employer. The action against the employee would be based on his conduct. The action against the employer is based on the theory of vicarious liability in which a party can be held liable for the acts of a different party.
The employer–employee relationship is the most common area respondeat superior is applied, but the doctrine is also used in the agency relationship. Then, the principal becomes liable for the actions of the agent even if the principal did not commit the act. There are three considerations generally:
- Was the act committed within the time and space limits of the agency?
- Was the offense incidental to, or of the same general nature as, the responsibilities the agent is authorized to perform?
- Was the agent motivated to any degree to benefit the principal by committing the act?
The degree to which they are answered in the affirmative dictates the degree to which the doctrine can be applied.
Common law distinguishes between civil and criminal forms of respondeat superior.[citation needed]
In US securities law
In US securities law cases in which respondeat superior has been considered in which the company was not a knowing participant in the employee's fraud, the results have been mixed.[7] In O'Brien v. Dean Witter Reynolds (D. Ariz 1984), the court, emphasizing the requirement of knowing participation, stated that an employee's knowledge could not be imputed to the employer.[7] The court in Dakis v. Chapman (D. Cal. 1983) stressed the concept of intentional participation; liability would not attach to a firm that was merely a "conduit" for the employee's securities violations.[7] In Parnes v. Heinold Commodities (N.D. Ill. 1983), the court described the use of respondeat superior as "bizarre" and noted that the firm itself had been victimized by its unscrupulous employee.[7]
As to claims under the
As Robert Anello wrote in
In US government actions
The US Supreme Court held in Ashcroft v. Iqbal, 556 U.S. 662 (2009), that senior government officials could not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.[14] This is an example of the US Supreme Court making an exception to break from the general precedent of respondeat superior.
In international law
At issue in the
See also
- Frolic and detour
- Products liability
- Qui facit per alium facit per se
- Superior orders
- Vicarious liability
- Worker's compensation
References
- ISBN 978-1-4548-0698-1, [1]
- ^ Harger, Lloyd. "Workers' Compensation, A Brief History". Florida Department of Financial Services. Retrieved 22 June 2010.
- JSTOR 1190275.
- ^ Yoram Dinstein. Israel Yearbook on Human Rights 1978, Martinus Nijhoff Publishers.
- ^ a b Commentaries on the Law of Master and Servant: Including the Modern Laws on Workmen's Compensation, Arbitration, Employers' Liability, Etc., Lawyers co-operative publishing Company, 1913.
- ^ a b c d e f Ralph L. Brill (April 1968). "The Liability of an Employer for the Wilful Torts of his Servants", Chicago-Kent Law Review.
- ^ a b c d e Barbara Black (January 1, 1984). "Application of Respondeat Superior Principles to Securities Fraud Claims under the Racketeer Influenced and Corrupt Organizations Act (RICO)," 4 Santa Clara L. Rev. 825.
- ^ Israel Davis and Julie E. Kamps (December 18, 2006). "Dusting off the Common Law: Plaintiffs turn to agency and respondeat superior in an attempt to hold 'non-speakers' liable for securities fraud", New York Law Journal.
- ^ Donna Nagy, Gerald Russello, Margaret Sachs (2016). Securities Litigation and Enforcement in a Nutshell, West Academic.
- ^ Converse v. Norwood, 1997 WL 742534 (SDNY; "in Central Bank, the [Supreme] Court implied that all forms of secondary liability are no longer viable.").
- ^ Thomas Lee Hazen, Treatise on the Law of Securities Regulation
- ^ a b Robert Anello (October 16, 2014). "Corporate State of Mind in Securities Cases: The Sixth Circuit Blazes a New Trail", Forbes.
- ^ Jayme Herschkopf (2017). "Securities Litigation", Federal Judicial Center Pocket Guide Series.
- ^ Ashcroft v. Iqbal, 556 U.S. 662 (2009), Justia US Supreme Court Center.
External links
- Fred Moore Whitney, The Doctrine of Respondeat Superior, thesis for the degree of Bachelor of Laws (1891). Cornell University. Historical Theses and Dissertations Collection Paper 147.
- Harvard Law Study Material on Tort (includes Respondeat Superior)