사용자책임에 관한 미국 판례의 동향

Abstract

In the U.S., employers’ vicarious liability refers to cases in which an employer is held responsible forthe wrongful acts of the employee within the scope of employment. This article describes maincharacteristics of employers’ vicarious liability under the U.S. law from a comparative law perspective. First, employers’ vicarious liability is strict liability. Accordingly, the employer is held liable for thetorts of the employee even if the employer is not negligent in selecting or supervising the employee. Second, under employers’ vicarious liability, it is required that the man at work is an employee. Indetermining whether he is an employee or not, the control test is performed: physical conduct in theperformance of the service is controlled, or is subject to a right of control by the employer. Therefore, anindependent contractor is not considered as an employee. Third, it is also required that the tortious conduct of an employee is within the scope of theemployment. In this regard, it is the general rule that employers’ vicarious liability covers the employee’ssmall deviations from the work set by his employer but not large ones. However, no hard and fast ruleexists with respect to the intentional tort of an employee. Such behaviors may be within the course ofemployment if intended to serve the employer’s interest. However, many cases reject that motive test. Additionally, the modern trend rejects vicarious liability for employee sexual misconduct, reasoning thatthese type of torts are purely personal in nature and unrelated to the employee’s duties. Lastly, employers’ vicarious liability tends to extend to the cases where the employee performs awrongful act at cyberspace workplace or via telecommunication device.