Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or can steer you toward the deepest pockets. This week’s word is the latter.

Written by: Darci G. Van Duzer

Erma Workingmom was panicked by the sudden demolition of her white picket fence as the delivery truck backed into her tiny yard. Her brother James Esquire consoled her with the words, “Don’t worry. We’ll get the money from Delivery Service.” Erma silently wondered how that was possible… the delivery service wasn’t at fault, only the driver. Little did she know, a force was fast at work distributing the burdens of economic losses and protecting innocent third parties. This force was tort law, and in this particular case, the common law doctrine of respondeat superior.

Literally meaning “let the master answer,” the respondeat superior doctrine used to be applied to master-servant relationships. It was intended to provide injured parties with an avenue to recover from the moneyed pockets of the master rather than just the moneyless pockets of the servant. While suing the servant was still an option, society viewed it as desirable to also hold accountable the one directly benefiting from the overall enterprise. Employers today are familiar with this doctrine; they are often considered vicariously liable for the injuries inflicted by their employees if the injuries occur within the scope of employment. Generally, the employer is not liable for an employee’s intentional torts, (unless they were committed in furtherance of the employer’s business). Whether an employee was acting within the scope of employment is often determined by looking at the time, place, and circumstances of the event, and whether the employee was acting for the benefit of the employer.

For example, let’s say in Erma’s case the delivery driver was making a routine stop to deliver a package when he backed into her fence. The driver was clearly acting within the scope of his employment as a delivery driver; it was performing the duties he is paid to perform, for the benefit of the delivery service, and was not intentional. If, however, the driver had been visiting his paramour illicitly when he was supposed to have been working, he might not only find himself fired, but also personally liable for the damage to the fence caused in the course of his frolic away from work. The unlucky driver could also be liable if he intentionally backed into the yard because he did not like Erma’s garden gnomes. As irritating as lawn ornaments are, the driver’s malicious intentions would most likely serve to clear the Delivery Service of liability (unless the driver was acting on behalf of the Service). If all of this seems a little unfair, remember that although the master may have to shell out the bucks, the master is typically also the one with insurance!