Respondeat Superior

[TAHAWK]

"If you know anything about law you know about respondeat superior: the corporation is responsible for the bad actions of its agents." 

 

Under the law of Ohio, Utah, Arizona, New Mexiso and most other states, Respondeat Superior is the rule that an employer is vicariously responsible for the torts of its employees arising in the course and scope of their employment.   It is unrelated to the law of agency.   A question may arise as to whether the allegedly directly liable actor was an employee or merely an agent. 

 

Under the law of Ohio, which follows the majority "control of the work" analysis, I have never been an "employee" of BSA and was last an "employee" of a local clouncil in 1961, as a summer camp staffer.

Edited May 5, 2021 by RememberSchiff
Title spelling

[CynicalScouter]

32 minutes ago, ThenNow said:

What would be the topic? Theories of vicarious liability and the morality of supervisorial accountability? 

I've already used the phrase Respondeat superior. Add in (in all seriousness) that BSA, the LC, or the CO was acting in loco parentis and we're all set.

[CynicalScouter]

8 minutes ago, TAHAWK said:

Respondeat Superior is the rule that an employer is vicariously responsible for the torts of its employees arising in the course and scope of their employment. 

And courts have held that for these purposes volunteers of ANY organization (such as BSA) are considered "employees" and that respondeat  superior applies

see Cordts v. Boy Scouts of America, 252 Cal.Rptr. 629 (Cal.App. 3 Dist. 1988) and M.V. v. Gulf Ridge Council of Boy Scouts, 529 So.2d 1248 (Fla.App. 2 Dist. 1988), Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 38 (Tex. 1995),

[TAHAWK]

An "employee" is subject to a number of laws in every state, and a body of federal laws, including maximum hours and minimum wage laws.  Hence, as a matter of law, a "volunteer" is not an "employee," although agruments hve been made for a change in the law due to the law interfering with plaintiffs' recovery of damages when a volunteer is not a deep enough pocket.

  

[TAHAWK]

 In the opinion of the appeals court in Cordts v. Boy Scouts of America , an unpaid volunteer is subect to the same tests for liability as en employee, a disatinctly minority analysis.  Moreover, the Court found that the  the misuse of a volunteers' authority to facilitate sexual misconduct is, generally, solely for personal purposes and entirely unrelated to one’s occupation. Accordingly, the appeals court found the scout leader’s sexual molestation of the scouts constituted a substantial deviation from his duties for personal purposes. The appeals court, therefore, concluded that such conduct was not incidental to his duties as an agent of the BSA. , the misuse of one’s authority to facilitate sexual misconduct is, generally, solely for personal purposes and entirely unrelated to one’s occupation. Accordingly, the appeals court found the scout leader’s sexual molestation of the scouts constituted a substantial deviation from his duties for personal purposes. The appeals court, therefore, concluded that such conduct was not incidental to his duties as an agent of the BSA.  BSA won

 

M.V. v. Gulf Ridge Council of Boy Scouts, 529 So.2d 1248 (Fla.App. 2 Dist. 1988), BSA was not held liable.  The opinion discusses the actions of an "employee" of the Local Council:  "This case involves whether the Gulf Ridge Council Boy Scouts of America, Inc. may be held liable in damages for the alleged emotional distress caused to a boy scout by the intentional homosexual acts of a first aid attendant at a camp operated by the Council. There is no discussion in the cited opinion as to the wrongdoer's status as an "employee," and so the opinion is not authority on that issue.  The word "volunteer" does not seem to appear in the opinion at all.

 

In Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 38 (Tex. 1995), the Texas Supreme Court held for the defendant Boy's Club:  "The trial court granted summary judgment for the Boys Clubs of Greater Dallas, Inc., and the court of appeals affirmed. 868 S.W.2d 942. Because we hold that the plaintiffs failed to raise fact issues on key elements of each of their claims against the Boys Club, particularly on the elements of proximate and producing cause, we affirm the judgment of the court of appeals."  Id at 475.   [T]he court of appeals held as a matter of law that the Boys Club could not reasonably foresee Mullens's assaults on the boys.  Id at 477.

 The claim made by Doe and the other plaintiffs was not that the Boy's Club was vicariously liable for the conduct of the wrongdoer, Mullins,  but was directly liable for negligence in accepting Mullins as a volunteer.  The issue of vicarious liability for the acts of Mullins as a volunteer never arose.

 

So none of these opinions stands for the proposition for which they were cited, supra.

 

In the current sexual molestation cases, the more interesting issues surround direcct negligence by BSA not any vicarious liability for the acts of volunteers.  

 

[TAHAWK]

1 hour ago, CynicalScouter said:

I've already used the phrase Respondeat superior. Add in (in all seriousness) that BSA, the LC, or the CO was acting in loco parentis and we're all set.

Neither the BSA, a LC, a unit, or unit adult volunteer acts "in loco parentis."  

"The phrase "person in loco parentis" in R.C. 2907.03(A)(5) applies to a person who has assumed the dominant parental role and is relied upon by the child for support. This statutory provision was not designed for teachers, coaches, scout leaders, or any other persons who might temporarily have some disciplinary control over a child. Simply put, the statute applies to the people the child goes home to. State v. Noggle, 67 Ohio St. 3d 31, 33 (1993).

Dale v. Boy Scouts of America, 160 N.J. 562 ,734 A.2d 1196 (1999)  "Our prior decisions indicate that the status of in loco parentis is reserved for individuals who function as a parent. See, e.g., Miller v. Miller, 97 N.J. 154, 162, 478 A.2d 351 (1984) (recognizing stepparent may have in loco parentis relationship); In re M.S., 73 N.J. 238, 243-44, 374 A.2d 445 (1977) (finding juvenile shelter for delinquents stands in loco parentis). Characteristics of that relationship include 'the responsibility to maintain, rear and educate the child,' Miller, supra, 97 N.J. at 162, 478 A.2d 351, as well as the duties of 'supervision, care and rehabilitation,' In re M.S., supra, 73 N.J. at 242, 374 A.2d 445; see also A.S., supra, 139 N.J.Super. at 369, 354 A.2d 100 (defining role as 'one who means to put himself in the situation of the lawful father with reference to the father's office and duty of making provision for the child'). Boy Scouts does not assume those responsibilities or those duties. It does not maintain or rear children. A Boy Scout leader may function as a supervisor of children for limited periods of time; he does not have 'the responsibility to maintain, rear and educate' children such that he stands in the place of a parent. 734 A. 2d at 1218.

[Eagle1993]

As requested, move some comment from this thread to the Chapter 11 one.  This topic can continue to discuss Respondeat superior.

Note ... no comment was deleted, they were just moved.