Usa And France Employer Vicarious Liability System

Vicarious liability may be defined as the imposition of liability upon one party for a wrong committed by another party. Such liability is an important exception to the usual rule that each person is accountable for his own legal fault but in the absence of such fault is not responsible for the actions of others. Vicarious liability of the employers refers to the kind of liability that employers are subject to for the actions of the persons employers have employed to provide service. Generally speaking, the employers are vicariously liable for the actions of the employees, independent contractors and the apparent agents. This Article focuses on the vicarious liability of the employers for the torts of the employees committed within the scope of employment.This Article proceeds as follows. Part I examines the definition, nature, applicable targets as well as the historical development of the vicarious liability in American Tort Law. On the basis of the previous discussion, this Article introduces the concept of the vicarious liability of employers and the concept of respondeat superior. Part II develops the theoretical framework upon which respondeat superior liability is explained. This Article then analyzes the justification of such liability from the perspectives of jurisprudence, fairness and economics. Part II concludes that respondeat superior liability should be explained from many aspects by various doctrines and that such liability is more efficient than the personal liability in preventing wrongful acts and thus promotes economic welfare.Part III and Part IV explores the meaning of "employee" and the meaning of "scope of employment" respectively. Part V adapts the theoretical framework developed in Part II, Part III and Part IV to analyze the liability of employers in the three types of tort cases in which the scope of employment is most frequently litigated: frolic and detour cases, intentional tort cases and dangerous instrumentality cases. Part VI provides jurisprudential analysis to employers' the right of indemnity against their employees as well as the reality of using that right by the employers against the faulty employees.Part VII examines the modifications of the relevant rules by Restatement (Third) of Agency (Tentative Draft). Part VIII compares the Chinese legal rule on vicarious liability of the employers with the counterparts of the American tort law and then suggests a number of modifications to the relevant Chinese legal rules.