Holding Employers Liable for the Intentional Misdeeds of Their Employees: A Review of Respondeat Superior in Personal Injury Actions

By
Mark A. Abramson & Kevin F. Dugan

I. Introduction

Oftentimes in personal injury actions employers attempt to avoid liability for the criminal acts of their employees arguing the conduct was unauthorized, and thus, outside the scope of employment. Consider, for example, the traveling salesman who drives under the influence of alcohol to various sales calls and causes an accident resulting in serious injuries. Or the counselor who manipulates a position of trust to sexually assault his patients. Or the drug-diverting healthcare worker who swaps medication-filled syringes, infecting patients with various diseases. In such cases, when the victim brings a claim against the employer based on the doctrine of respondent superior, the employer routinely contends it is not vicariously liable for the criminal conduct of its employee, relying on a broad assumption that criminal acts fall outside the scope of employment.

While that may have been true in the early twentieth century,[1] today, however, it is just that: an assumption. As discussed below, simply because an employee’s conduct was criminal or was otherwise forbidden does not render it outside the scope of the employment. This article reviews the law in New Hampshire and elsewhere concerning an employer’s vicarious liability for the intentional or unauthorized acts of its employees and explains why practitioners should not automatically conclude employers are “off the hook” for the crimes of their employees. Provided the conduct was associated with the employee’s duties, occurred during an authorized time, and was sufficiently foreseeable, employers may be found vicariously liable for the misdeeds of their employers–whether criminal or not.

II. Discussion: Respondeat Superior

New Hampshire law has long recognized the rule of respondeat superior, which imputes liability to “master[s] for the wrongs of a servant acting on the master’s business” based solely on the employer’s relationship to the employee.[2] The rule is premised on the notion that it is reasonable to hold employers liable for the physical actions of their employees, over whom they have the capacity to exercise control.[3] Thus, the rule provides “‘an employer may be vicariously responsible for the tortious acts of its employee if the employee was acting within the scope of his or her employment when his or her tortious act injured the plaintiff.’”[4]

While this rule, in theory, is quite simple, our Supreme Court has recognized it “has not resulted in simple application.”[5] The determination of whether an employee’s conduct falls within the scope of his employment is a factual one, requiring consideration of whether the conduct: (1) “is of the kind he is employed to perform; (2) . . . occurs substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer.[6] In addition, “[o]nce an employment relationship has been established, the employer bears the burden of proving that the employee was acting outside the scope of his employment in committing the offense complained of.”[7]

A. First Element: The Conduct is “Of the Kind” the Employee is Expected to Perform.

Citing the first element, employers often contend they are not vicariously liable for their employees’ intentional misdeeds because the specific conduct was unauthorized. That is not the test, however. Even if forbidden, or done in a forbidden manner, the act may nonetheless be within the scope of employment if it was done in the course of achieving the employer’s intended (and authorized) result.[8] Indeed, our Supreme Court has explicitly held such conduct “can include ‘specifically forbidden acts and forbidden means of accomplishing results.”[9] This is because “[a] master cannot direct a servant to accomplish a result and anticipate that he will always use the means which he directs or will refrain from acts which it is natural to expect that servants may do.”[10]

To illustrate, in Southport Little League v. Vaughn, 734 N.E.2d 261, 270 (Ind. Ct. App. 2000), parents brought suit against the Little League after their children were sexually assaulted by a volunteer. They argued the League was vicariously liable for the volunteer’s conduct of viewing their children’s genitalia. The League moved for summary judgment on the vicarious liability claim, which the trial court denied, citing issues of fact as to whether the volunteer committed the acts within the scope of his employment.[11]

On appeal, the Indiana Court of Appeals affirmed the decision of the trial court. The Court noted the conduct of viewing the children’s genitalia occurred while they were trying on uniforms, which was an authorized activity.[12] Specifically, the volunteer “was clearly authorized to assist the youths in dressing and undressing” because he was the equipment manager who “was the sole individual in charge of fitting youths with baseball uniforms.”[13]

In other words, because the conduct occurred in the course of achieving the employer’s intended result, i.e. fitting uniforms, the conduct could be deemed within the scope of employment.

B. Second Element: The Conduct Occurs Substantially within the Authorized Time and Space Limits.

This second factor is perhaps the least likely to present obstacles. It merely requires a showing that the tortious conduct occurred “substantially within the authorized time and space limits.”[14] Our Supreme Court has broadly construed this factor, holding that even some off-duty acts can be found to be in the scope of employment.

For example, in Daigle v. City of Portsmouth,[15] an off-duty police officer responded to a call for assistance in an attempted theft. While assisting, the officer apprehended the suspect and assaulted him with a nightstick, causing significant injuries. The suspect later successfully sued the City for the officer’s misconduct under the doctrine of respondeat superior. On appeal, the City claimed the trial court erred in applying the doctrine because there was no evidence the officer was acting for the City at the time of the assault as he was off-duty and his previous shift ended more than two hours prior to the incident.[16]

Our Supreme Court disagreed, citing the City’s “narrow conception of the temporal scope of police employment.”[17] The Court explained that, while

it is true for conduct to fall within the scope of employment it must occur ‘substantially within the authorized time,’ or ‘during a period which has a reasonable connection with the authorized period,’ this general rule is not blind to the reality that some employees are understood to have the obligation, or at least the option, to perform official duties whenever the need may arise. When an employee is thus on-call, and he acts to perform a normally authorized task during an off-duty period, his activity is within the scope of employment and his employer may be held liable for his tortious performance.[18]

Because there was evidence the City had approved of the officer’s service during off-duty hours in the past the trial court’s ruling was not in error.[19]

C. Third Element: The Conduct was Actuated in Part by a Purpose to Serve the Employer.

Finally, employers often argue they are not liable for their employees’ criminal misdeeds because they were not committed to benefit the employer, but rather, for the employees’ own selfish motives. This third element in the respondent superior analysis requires consideration of whether the conduct “is actuated, at least in part, by a purpose to serve the employer.”[20] Indeed, it is well-settled that “[c]onduct not actuated at least in part by a purpose to serve the employer will be outside the scope of employment.”[21]

Our Supreme Court has held, however, that “[i]t is possible for liability to exist in cases where there may be mixed motivation; i.e., the servant is actuated with a purpose to serve both the master as well as other interests.”[22] In addition, “[a]n employee’s act may be within the scope of employment even though the act is willful or malicious.”[23] Thus, provided there was some benefit to the employer it may be deemed to have been committed within the scope of employment.

Further, it appears the modern trend is to analyze the third prong using a “foreseeability”
analysis.[24] For example, in Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 907 (Minn. 1999), the plaintiff was allegedly sexually assaulted by the defendant’s employee, David Kist, when she was a resident at the temporary crisis shelter owned and operated by the defendant. The defendant moved for summary judgment as to, inter alia, the vicarious liability claim. The trial court granted the motion, finding “the sexual contact was for Kist’s personal sexual gratification and was not in furtherance of his employment duties.”[25] The plaintiff appealed and the Supreme Court of Minnesota reversed, noting it has recognized:

[t]he master is liable for any such act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort.[26]

The Court determined it was improper for the trial court to rely solely on the fact that the
sexual assault was criminal and personally motivated in determining whether Kist’s conduct was related to the duties of his employment, reasoning:

[A] reasonable jury could find that the source of Kist’s assault was related to the duties of his employment. Although Kist’s sexual assault of Fahrendorff was criminal and personally motivated, the lower courts erred in relying on those factors to grant North Homes’ motion for summary judgment. . . . [J]ust because an employee’s ultimate actions may be motivated by personal gratification and prohibited by the employer does not mean that those actions fall outside the scope of employment as a matter of law. Rather, it is a question of fact whether the employee’s acts were foreseeable, related to, and connected with acts otherwise within the scope of his employment.

. . .

Kist’s assault would not have occurred but for his employment. . . . Kist’s job enabled him to be alone with Fahrendorff, to have unfettered access to her bedroom, and to conceal, at least for a short time, his criminal conduct. The record contains evidence that Kist used this authority on two successive nights to enter Fahrendorff’s room and have sexual contact with her.

. . .

Additionally, . . . the evidence raises a factual question as to the foreseeability of sexual abuse in group homes.[27]
.
While the New Hampshire Supreme Court has not expressly considered whether foreseeability is significant in assessing the scope of an employer’s vicarious liability,[28] at least one Superior Court has found it is a factor to consider under the third prong.[29] Accordingly, foreseeability may have a role to play in analyzing the third prong of the respondeat superior analysis.[30]

III. Conclusion

As the above demonstrates, whether an employee’s criminal or intentional act is within the scope of employment is a factual question requiring consideration of numerous factors. The law imputes liability to employers for the criminal acts of their employees if committed in the course of achieving the employer’s intended goal, within authorized time limits, and in a foreseeable manner. This is consistent with the overarching principle emphasizing the employer’s capacity to control the physical acts of its employees. Thus, practitioners faced with a potential personal injury claim involving on-the-job criminal misconduct should not automatically assume the acts are outside the scope of employment simply because the employer prohibited the acts.
ENDNOTES

[1]. 8 R. McNamara, New Hampshire Practice, Personal Injury: Tort and Insurance Practice § 5.12 (1996) (citing Morin v. People’s Wet Wash Laundry Co., 85 N.H. 233 (1931)).
[2]. Hunter v. R.G. Watkins & Son, 110 N.H. 243, 245 (1970).
[3]. Restatement (Second) of Agency § 219 cmt.a (1958).
[4]. Porter v. City of Manchester, 151 N.H. 30, 39-40 (2004) (internal citations omitted) (“hereinafter Porter I”).
[5]. Hunter, 110 N.H. at 245.
[6]. Porter I, 151 N.H. at 39-40 (internal citations omitted).
[7]. 4 Litigating Tort Cases § 54:31 (Conlin & Cusimano eds., 2012).
[8]. Porter v. City of Manchester, 155 N.H. 149, 155 (2007) (internal citations omitted) (hereinafter “Porter II”).
[9]. Id. at 155-56 (quoting Restatement (Second) of Agency § 230 cmt.b)).
[10]. Id. (Internal quotation marks and citations omitted).
[11]. See Southport Little League v. Vaughn, 734 N.E.2d 261, 265-67, 270-71 (Ind. Ct. App. 2000).
[12]. Id. at 270-71.
[13]. Id. at 271.
[14]. Porter I, 151 N.H. 39-40.
[15]. 129 N.H. 561, 579 (1987).
[16]. Id. at 566, 579.
[17]. Id. at 579.
[18]. Id. at 579-80 (internal quotation marks and citations omitted).
[19]. Id.
[20]. Porter II, 155 N.H. at 155 (internal quotation marks and citations omitted).
[21]. Id.

[22]. Id. (quoting Restatement (Second) of Agency § 236 (1958)).
[23]. New Hampshire Civil Jury Ins. § 14.4.
[24]. See generally 4 Litigating Tort Actions § 54:31 (discussing respondeat superior in context of sexual abuse cases).
[25]. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 909 (Minn. 1999) (internal quotations and citations omitted).
[26]. Id. at 910 (quoting Lange v. National Biscuit Co., 211 N.W.2d 783, 785–86 (Minn1973)).
[27]. Id. at 911 (emphasis added)
[28]. Daigle, 129 N.H. at 582.
[29]. See Cherry v. Hillsborough County, docket no. 08-C-380, 2010 WL 8544212 (N.H. Super. Ct., Merrimack Cty., April 23, 2010) (in claim for vicariously liability premised on an intentional tort, denying motion for summary judgment ruling “even if the court finds it necessary to determine the employer’s awareness of the officer’s actions, it may decide that the conduct was sufficiently foreseeable to hold the employer liable for its employees’ behavior regardless of actual knowledge”); see also Richard v. Amoskeag Mfg. Co., 79 N.H. 380, 384 (1919) (“If the act causing the injury is connected with or grows out of the service the servant is doing, the latter is within the scope of his employment and the master is liable.”).
[30]. But see Bales v. Private Jet Commer. Group, Inc., 2013 U.S. Dist. LEXIS 31586, at *4-5 (D.N.H. 2013) (noting employee’s motivation “critical” to analysis).