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53 Val. U. L. Rev. 1 (2018-2019)
Institutional Liability for Employees' Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages

handle is hein.journals/valur53 and id is 13 raw text is: Articles INSTITUTIONAL LIABILITY FOR EMPLOYEES' INTENTIONAL TORTS: VICARIOUS LIABILITY AS A QUASI-SUBSTITUTE FOR PUNITIVE DAMAGES Catherine M. Sharkey* Abstract Modern day vicarious liability cases often address the liability of enterprises and institutions whose agents have committed intentional acts. Increasingly, when employers are sued, the line is blurred between the principal's vicarious liability for its agent's acts and its own direct liability for hiring and/or failing to supervise or control its agent. From an economic deterrence perspective, the imposition of vicarious liability induces employers to adopt cost-justified preventative measures, including selective hiring and more stringent supervision and discipline, and, in some instances, to truncate the scope of their business activities. Negligence-based direct liability likewise induces employers to adopt cost-justified preventative measures (without constraining activity levels to the degree that strict liability does). This raises questions. Why doesn't direct employer negligence liability suffice, in terms of deterring employees' intentional torts? Or conversely, so long as there is vicarious liability, is there any need for direct negligence liability at all? In this Article, I argue that, as aform of strict liability, vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer's preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further elaboration. The risk of under-detection provides a strong justification for the expansion of the scope of institutional or employer vicarious liability. The under-detection rationale, moreover, has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers Crystal Eastman Professor of Law, New York University School of Law. This Article is adapted from the 2018 Monsanto Lecture, which I delivered at Valparaiso University Law on April 12, 2018. 1 presented earlier versions of this Article at the Berlin Wissenschaftskolleg Institute for Advanced Studies Seminar, Haifa University Faculty Workshop, Tel Aviv University Private Law Workshop, and the German-American Lawyers' Association (DAJV) Lecture at Freiburg University. I am grateful for comments from workshop participants, especially Ronen Perry, Ariel Porat, and Gerhard Wagner, and for research assistance from Caleb Seeley (NYU 2017) and Meghan Racklin (NYU 2019).

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