Vicarious liability

“ Modern civil law recognises vicarious liability in two chief classes of cases. In the first place, masters are responsible for the acts of their servants done in the course of their 375employment. In the second place, representatives of dead men are liable for deeds done in the flesh by those whom they represent. ”

“ Who could establish liability in such a case, were evidence of authority required, or evidence of the want of it admitted?
A further reason for the vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil 376liability. It is felt, probably with justice, that a man who is able to make compensation for the hurtful results of his activities should not be enabled to escape from the duty of doing so by delegating the exercise of these activities to servants or agents from whom no redress can be obtained. ”

“ If the wrongful act was done by himself, or was occasioned by his negligence, of course he is liable, and he is equally so, if the act constituting the fault was done by one towards whom he bore the relation of principal, but the liability ceases where the relation of principal entirely ceases to exist, as in case of inevitable accident. ”

“ Inherent, however, in the negligence inferred in that type of case is an act or failure to act by an individual. While the acts of negligence underlying such accidents may reach higher into the management hierarchy than the one involved here, the Federal Employers' Liability Act compels us to go no higher than a fellow servant. ”

“ Deas, (4 Johns. 84) , in which Chief Justice Kent says, 'If a party who makes this engagement,' (the gratuitous performance of business for another,) 'enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance.'
A principle to which the defendant in error's second point also refers, is the liability of an unpaid agent for gross negligence only. ”

“ Yet there are exceptional cases in which, for sufficient or insufficient reasons, the law sees fit to break through the rule as to mens rea. It disregards the formal condition of liability, and is satisfied with the material condition alone. It 333holds a man responsible for his acts, independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus independent of mens rea may be distinguished as wrongs of absolute liability. ”

“ It is not enough he is employed, if not as a servant. If I employ my servant to pull down a wall, and by his negligence he injures a passer-by, I am liable. If I employ a firm of builders to do it, I am not liable. ”

“ We must either brand cases of the third type as historical anomalies, of which we are gradually to rid ourselves, or else revise our notions of tort liability. Let us remember that the nineteenth century was well advanced before we understood the subject of negligence and that before we had convinced ourselves that no liability without fault was orthodox common law, the highest court of England had given absolute liability a new field by the decision in Rylands v. ”

“ Blackstone resorted to the first of these. "A man is answerable," he said, "for not only his own trespass but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespass for which the owner must answer in damages." But note that the negligence here is a dogmatic fiction. No proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. The negligence is established by the liability, not the liability by the negligence. ”

“ The second contention rests upon the assumption that the court below affirmed a supposed action of the trial court in erroneously instructing the jury that the effect of the employers' liability act was to abolish the doctrine of assumption of risk. ”

“ Congress has defined the tort liability of the Government as analogous to that of a private person. Traditionally, one function of civil liability for negligence is to supply a sanction to enforce the degree of care suitable to the conditions of contemporary society and appropriate to the circumstances of the case. ”

“ He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once ... ”

“ We are prompted, therefore, to seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity leaves the actor open to a judicial shifting of loss. ”

“ First, by the positive legislation of the Philippine Codes, civil and criminal, a distinction is drawn between a civil liability which results from the mere negligence of the defendant and a liability for the civil consequences of a crime by which another has sustained loss or injury. ”

“ There is a clear difference between the revival of a liability which is unenforceable only because a statute has barred the remedy regardless of the will of the parties, and the extension of a liability beyond the limit expressly agreed upon by the parties. ”

“ If there is no act, there is no liability. To these nominate torts, each with its own special rules, coming down from the strict law, we added a new ground of liability, namely, negligence, going on a principle, not of duty to answer for aggression, but of duty to answer for injuries resulting from falling short of a legal standard of conduct governing affirmative courses of action. ”

“ The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. ”

“ By the settled law of this court, common carriers of goods or possengers cannot, by any contract with their customers, wholly exempt themselves from liability for damages caused by the negligence of themselves or their servants. ”

“ Intentional aggression, (2) negligent action, (3) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs. Accordingly these three are the immediate bases of delictal liability.
Controversial cases of liability without fault involve the third postulate. Systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. ”

“ When a man commits a tort, he incurs, by force of the law, a liability to damages, measured by certain rules. When a man makes a contract, he incurs, by force of the law, a liability to damages, unless a certain promised event comes to pass. ”

“ Among the refinements developed by the common law for the purpose of limiting the risk of liability arising from wrongful conduct is the rule that violation of a statutory duty creates liability only when the statute was intended to protect those in the position of the plaintiff from the type of injury in fact incurred. ”

“ The parties urge that the alternatives in selecting the law to determine liability under this statute are: (1) the internal law of the place where the negligence occurred, or (2) the whole law (including choice-of-law rules) of the place where the negligence occurred, or (3) the internal law of the place where the operative effect of the negligence took place. ”

“ He is chargeable for all losses except such as may be occasioned by the act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neglect on his part; and he cannot, by any mere act of his own, avoid the responsibility which the law thus imposes. He cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsibility by making exorbitant charges when such assent is refused. ”

“ If you exceed that sum by as much as fifty pounds, I will not hold you responsible; beyond that point you are no agent of mine, and I shall repudiate liability.’ It is not quite clear to me whether, had the plaintiff in fact repudiated liability under his agent’s contracts, he would, under all the circumstances, have been successful in so doing; but he has not adopted this course. He has accepted liability, and fallen back upon his rights against the defendant under the terms of the latter’s engagement. ”

“ Such an act of negligence being imminently dangerous to the lives of others, the wrong-doer is liable to the injured party, whether there be any contract between them or not. Where the wrongful act is not immediately dangerous to the lives of others, the negligent party, unless he be a public agent in the performance of some duty, is in general liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract. ”

“ In 10 of these the lower court had withheld the case from the jury and rendered judgment for the employer, in 3 it had sustained jury verdicts for the employer and in 1 reversed a jury verdict for the employee and directed a new trial.
From this group of cases three observations can be made:
(1) The basis of liability has not been shifted from negligence to absolute liability. ”

“ Two errors are assigned by the defendants, as follows: 1. That the court, instead of adjudging that the defendants were liable, should have decided that they were exempt from liability, by virtue of the proviso in the policy. 2. ”

“ I cannot suppose anything so outrageous, and proceed to consider what will follow if the liability is optional, but to exist where the parties have not agreed to the contrary. Every prudent employer of labour will immediately draw up a form to be signed by his workmen, that the master shall not be liable for a fellow servant's negligence. ”

“ Undoubtedly any suit to establish the civil liability imposed by the Act must ultimately seek recovery of the consideration paid less income received or damages if the claimant no longer owns the security. ”

“ The omission of the reasonable care required is the negligence which creates the liability; and whether this existed is a question of fact for the jury to determine, or by the court where a jury is waived. ”

“ Since the condition was one created by the Court and beyond effective control by Congress, it was appropriate and fitting that the Court correct it. In fact, a decision not to correct it was to let the administration of this law be governed not by the aim of the legislation to safeguard employees but by a hostile philosophy that permeated its interpretation.
The basis of liability under the Act is and remains negligence. Judges will not always agree as to what facts are necessary to establish negligence. ”

“ It may impose an extraordinary liability such as the present, not only upon those at fault but upon those who, although not directly culpable, are able nevertheless, in the management of their affairs, to guard substantially against the evil to be prevented. ”

“ As to subordinate officials who have acted in the line of duty it has made the change innocuous by assuming liability. One who is brought before the court as a formal party only will not be heard to object that there has been a denial of due process in enlarging the liability to be borne by some one else. ”

“ The principal question arising upon the assignments of error requires the consideration, in some of its aspects, of the general rule exempting the common master from liability to one servant for injuries caused by the negligence of a fellow-servant in the same employment. ”

“ The theory of remedial liability presents little difficulty. It may be laid down as a general principle, that, whenever the law creates a duty, it should enforce the specific fulfilment of it. The sole condition of the existence of remedial liability is the existence of a legal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. ”

“ Were this not so, the almost universal acceptance of the first proposition in this Lecture, that the general foundation of liability for unintentional wrongs is conduct different from that of a prudent man under the circumstances, would leave all our rights and duties throughout a great part of the law to the necessarily more or less accidental feelings of a jury. ”

“ Hence a set of nominate delicts requiring dolus is supplemented by a theory of culpa. Hence a set of nominate torts, characterized by intentional aggression, is supplemented by liability for negligence, and the latter becomes the more important source of legal liability in practice.
Must we not recognize also a third postulate, [Pg 176] namely, that men must be able to assume that others, who keep things or maintain conditions or employ agencies that are likely to get out of hand or escape and do damage, will restrain them or keep them within proper bounds? ”

“ The extension of the doctrine of liability without fault to new situations to attain a permissible legislative object is not so novel in the law or so shocking 'to reason or to conscience' as to afford in itself any ground for the contention that it denies due process of law. ”