Vicarious Liability for Intentional Wrongdoing: Myth or Fact?

If, as has happened to me recently, someone tells you that they or their client will bear no vicarious liability in the lawsuit in question because the plaintiff alleges only intentional conduct on the part of their agent, I recommend raising your eyebrow, pausing a beat (for dramatics), clearing your throat, furrowing your brow, shifting your weight in your chair, and beginning with a very pained, “well actually….”

For the person who says this isn’t just misstating the law, they are answering the wrong question. 

The question is not whether the tortious conduct is intentional or negligent.  The question is whether the wrongdoer is acting within the scope of their employment. 

One acts within one’s scope of employment, even if committing an intentional tort, when one’s “purpose, however misguided, is wholly or in part to further the [employer's] business."  Ten Broeck Dupont, Inc. v. Brooks, Ky., 283 S.W.3d 705, 732 (2009).  One’s conduct is beyond the scope of one’s employment where one “acts from purely personal motives . . . which [are] in no way connected with the employer's interests.”  Papa John's Internatl., Inc. v. McCoy, Ky., 244 S.W.3d 44, 52 (2008).  The law in Ohio is fundamentally the same.  See Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 42 (“[i]t is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be 'calculated to facilitate or promote the business for which the servant was employed.’”).

The archetypal scenario where this principle seems to get tested and examined is a bar bouncer beating the snot out of an obnoxiously drunk patron, and the question is whether the employer can be liable for the bouncer’s assault and battery of the patron.   

Particularly in the commercial and business setting, however, this principle can be invoked without much nuance, or for that matter, controversy.  Think of a real estate agent who engages in fraud to secure a home sale (and a commission).  The agent’s broker retained the agent to sell houses.  The broker takes a cut of the commission.  Plainly, the agent is acting – albeit badly – within the scope of their agency. 

There are a whole panoply of intentional business torts that involve intentional action that would almost necessarily be taken within the scope of one’s agency, ranging from misappropriation of trade secrets, to tortious interference with contracts or business expectancies, to acts aiding and abetting fiduciary duty breaches. 

So, in the context of a commercial or business dispute where respondeat superior (“let the master answer”) liability is alleged, it is important to not lose sight of the fact that the intentional nature of the tort alleged against the agent does not determine the principal’s vicarious liability.