DEFENSES TO INTENTIONAL TORTS INVOLVING PERSONAL INJURY

Question 1

RESPONDEAT SUPERIOR AND VICARIOUS LIABILITY

Answer 1

Under the doctrine of respondeat superior, an employer is vicariously liable for any tortious conduct of an employee that is within the scope of employment.

An employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances:

• When the use of reasonable force is inherent in the employee’s job and the employee acts in the course of his/her work
• • When the employee is authorized by the employer to act on its behalf and the employee’s position provides an opportunity to commit an intentional tort

Question 2

Explain apparent consent and its limitations

Answer 2

Apparent consent is a defense to battery when consent can be reasonably implied from the plaintiff’s conduct or from custom. However, consent is only a defense where the defendant’s conduct falls within the scope of the plaintiff’s consent.