Tort claims based on sexual misconduct present significant difficulties for victims seeking redress for the harm caused. Even if a victim prevails on a tort theory, the offender may be unable to satisfy the judgment. The issue then becomes whether the offender’s employer should be held liable for the victim’s injuries. Plaintiffs may pursue suits against employers under theories of derivative liability, direct liability, or both theories. This Article focuses on vicarious liability theory.
Vicarious liability, a derivative liability theory, is the “[l]iability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.” Respondeat superior—the liability of an employer for the torts of its employees—is the most common vicarious liability theory. As the Minnesota Supreme Court has stated, “the ‘well-established principle’ of respondeat superior” imposes vicarious liability on an employer for the torts an employee commits “within the course and scope of [their] employment.” This rule imposes the cost of employee-caused injuries on employers as a matter of policy.
Issues concerning the course and scope of employment may arise frequently in vicarious liability cases, but cases involving sexual assault by employees have been problematic. There would likely not be any question about whether a delivery driver who drove over the speed limit and injured a third person while making a delivery was acting within the course and scope of employment. The question becomes more difficult, however, if the driver sexually assaults a customer in the course of a delivery stop. In that case, it would be difficult to find that the employee acted in any way to further the employer’s interests.
The predominant standard, which requires proof that the employee’s actions were motivated, at least in part, by a desire to further the employer’s interests, restricts plaintiffs seeking to recover under a vicarious liability theory. A fair result, so the argument goes, because an employer should not face liability when the employee’s motives were personal and unrelated to the employment. On the other hand, so the argument goes, the employer should be liable for employee conduct that constitutes a characteristic risk of the type of employment because those actions properly fall within the employer’s responsibility, irrespective of the employee’s motives.
Sexual assault cases stress the vicarious liability rules, creating problems for courts that are required to determine, as a matter of policy, both what the governing vicarious liability rules should be and what evidence is sufficient to satisfy them. This Article focuses primarily on Minnesota law as it has played out in vicarious liability cases involving intentional misconduct, with particular attention to cases involving sexual assault.
Part I sets out the prevailing rules for vicarious liability and how those rules apply in cases involving intentional misconduct, focusing on the Third Restatements of Torts and Agency. Part II provides a brief history of Minnesota vicarious liability law. Part III examines the Minnesota Supreme Court’s decision in Lange v. National Biscuit Co., a case that split Minnesota vicarious liability law into separate standards for intentional and unintentional employee tortious conduct, and its later decision in Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., which added a foreseeability requirement to Lange.
Part IV examines the Minnesota Supreme Court’s post-Lange and Marston application of vicarious liability principles in a series of cases involving intentional misconduct, many of which involve sexual assault. It traces the evolution of vicarious liability in intentional torts cases in Minnesota and closely examines the proof the court has held necessary and sufficient to meet these standards. Part V compares Minnesota law to section 11 of the Third Restatement of Torts, which addresses vicarious liability and sexual assault. The Article concludes by highlighting the unique position the Minnesota Supreme Court has taken in vicarious liability cases involving intentional misconduct, a position that provides significant protection for sexual assault victims.