Relational Fault and the Intermediate Nature of Employer Vicarious Liability
Document Type Thesis or dissertation
For more than a century, scholars have debated without resolution over various justifications for employer vicarious liability for torts of employees. This paper contends that this debate has suffered from an inaccurate and unduly narrow conception of fault and blameworthiness. I explore and reject the most popular theories of vicarious liability advanced so far. I then argue for a relational account of fault in which blame should be seen on a relationship-by-relationship basis. Orthodox notions of fault have taken for granted a binary landscape of blame—that a party may only be either be completely innocent or absolutely blameworthy. Under these conceptions, it would be incoherent for employer and victim to blame different parties for a wrong. Relational fault allows employer and victim to coherently blame different parties for the same wrong; a blame ecosystem can be set up such that a victim may hold an employer blameworthy while an employer may hold their employee blameworthy. Rather than the employer being either blameworthy in the same sense as the employee tortfeasor or completely innocent, I argue that the employer is differently blameworthy. I explore how differences in blameworthiness map onto different kinds of liabilities for employer and employee. I conclude by describing how the adoption of the concept of relational fault is a significant step toward resolving the puzzling nature of employer vicarious liability.
Date Posted: 09 August 2016