Vicarious Liability for Sexual Torts

Abstract

The author reviews the generally accepted rationales for vicarious liability. The author will then argue that the test for sufficient connection that best achieves these goals is a far more simple one than the law has yet embraced. All one really need determine is whether the employment position materially increased the risk of the defendants committing the tort over what it would be were the defendant unemployed. Through the piece, the author will attempt to demonstrate by exploring the distracting job-created power theory of vicarious liability that one need not inquire precisely how the employment position increased the risk. Equally, the author will attempt to demonstrate that tests that look to why the employment relationship increased the risk- searching for ostensible authority, categorizing the tort as an unauthorized mode of performing an authorized task, or asking whether the employee was motivated to assist the employer, for example- also miss the mark. Most importantly, the author wants to challenge directly the idea that “the mere fact that employment gives the employee the opportunity to commit a tort is not sufficient to make the employer liable”. If the employment position affords the employee a better opportunity to commit a sexual tort, that is a precise and sufficient reason for the law to impose vicarious liability.

Keywords: vicarious liability, law, sufficient connection, test, employment, risk, defendants, tort, unemployed, sexual tort