The Utah Supreme Court recently held in Clark v. Pangan (April 2000), that employers can be held vicariously liable for an employee's battery of a co-employee. In that case, two postal workers were involved in an altercation. No surprise there, you might think, but this was not the proverbial disgruntled former employee returning to seek vengeance. Instead, a supervisor and a subordinate had a disagreement over how to conduct an inspection and do some paperwork. The supervisor claimed that, in order to avoid carrying on the argument in front of others, he raised his hand to direct the subordinate into an office. The subordinate claims the supervisor hit or shoved him. The subordinate sued the supervisor personally, and the United States substituted itself as the defendant after certifying that the supervisor was acting within the scope of his employment at the time of the incident.
The issue presented for decision was whether the employer could be vicariously liable for the intentional tort of battery. Vicarious liability is an old principle of employment law whereby the employer is held to be responsible for the acts of its employees when they are acting within the course and scope of their employment. Vicarious liability is considered by courts to further the policies of preventing recurrence of the employee's misconduct (since the employer is thought to be able to control the employee), gives greater assurance of compensation to the victim (employers usually have more money than employees and are in a better position to purchase insurance), and ensures that losses will be equitably borne by those who benefit from the employee's activity. Vicarious liability is distinct from direct liability, which holds the employer responsible for its own misconduct, such as negligent supervision of the employee or instructing the employee to commit some tortious act.
The Utah Supreme Court held that indeed the employer could be held liable for the employee's battery if it occurred within the scope of employment, thus clearing up the suggestion from an earlier case that battery might be outside the scope of employment as a matter of law. The Court held that a three part test should be used to determine whether the battery was within the scope of employment:
- the conduct must be of the general kind the employee is employed to perform,
- the conduct must occur within the hours of the employee's work and within the ordinary spatial boundaries of the employment, and
- the conduct must be motivated, at least in part, by the purpose of serving the employer's interest.
If all three elements are met, the employer is vicariously liable. No word yet on how the jury will apply this test to the facts of the case, however.