Much of contemporary tort law involves lawsuits against corporations. Edward Thurlow, an eighteenth-century Lord Chancellor of England, famously asked, “Did you ever expect a corporation to have a conscience, when it has no soul to be damned and no body to be kicked?” Henry Thoreau, in Civil Disobedience took a somewhat different stance: “It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.”

So when should a corporation be held liable? There is a major branch of modern torts law — products liability — that answers this question with respect to the goods corporations sell by bypassing the traditional negligence inquiry: corporations are liable to plaintiffs injured by goods they manufacture or sell when those goods are defectively designed or defectively manufactured or the corporation provides inadequate warning about potential dangers. So while it's fair to say that (usually) corporations are held liable only when they are at fault in some important sense (there's yet another category of cases we'll discuss later in the quarter that involve “strict liability,” or liability without fault at all — for “merely in living as and where we live,” as the poet Wallace Stevens wrote in Esthetique du Mal, a poem one of my first-year professors introduced me to), these cases lie outside the negligence doctrine we're now studying. We will discuss products liability later in the quarter.

But what about other sorts of injuries that arise out of doing business where the plaintiff is still required to show negligence by someone? Sometimes it is fair to attribute the negligence to the corporation itself: when, for example, corporate officers or supervisors act negligently in setting corporate policy or they are negligent in hiring or training their employees and this negligent hiring or inadequate training causes the plaintiff's injury. The Restatement (Third) of Agency § 7.03 refers to this as “direct liability.”

But sometimes any fault lies with line-level workers, who may even have violated company policy in doing whatever caused the plaintiff's injuries. Of course, injured plaintiffs can sue those workers. But there are pragmatic reasons — the lack of deep pockets, potential jury sympathy, and so forth — why a plaintiff might prefer to sue the corporation instead (or as well). Here, a different theory of liability — vicarious liability — kicks in. Section 7.03(2) of the Restatement (Third) of Agency explains, among other things, that a principal “is subject to vicarious liability to a third party harmed by an agent's conduct when . . . the agent is an employee who commits a tort while acting within the scope of employment.”

In cases where the employer would rather that the employee not have done the acts that resulted in the plaintiff's injury — and indeed might have rules against doing those acts — this naturally raises the question of when those acts nonetheless subject the employer to liability under the doctrine of respondeat superior, a branch of vicarious liability.

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