Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
2. The Restatement approach. Judge Friendly focuses on one piece of the Restatement test
for the scope of employment—the requirement that the conduct of the servant be “actuated, at
least in part, by a purpose to serve the master.” Section 228(1) of The Restatement (Second) of
Agency further provides that conduct is within the scope of employment only if “it is of the kind
he is employed to perform” and “it occurs substantially within the authorized time and space
limits.” In cases of intentional violence by one servant against another, such violence is only
within the scope of employment if “the use of force is not unexpectable by the master.”
RESTATEMENT (SECOND) OF AGENCY § 228(1) (1958).
3. The back-story to Ira Bushey. In the district court opinion, District Judge Jack B.
Weinstein took a different approach than Judge Friendly: instead of rejecting law and economics
in his decision, Judge Weinstein used a “law and economics analysis” to impose liability on the
United States. DAVID M. DORSEN, HENRY FRIENDLY, GREATEST JUDGE OF HIS ERA 264 (2012).
Citing then-Professor Guido Calabresi, Judge Weinstein held that liability should be imposed on
the employer because the employer can “obtain insurance more cheaply than those who may be
injured.” Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp. 518, 530 (E.D.N.Y. 1967).
On appeal, while Judge Friendly was uncharacteristically out of the office, his law clerk, a
recent Yale Law School graduate named Bruce Ackerman (now a professor at Yale) drafted an
opinion affirming the economic approach adopted by Judge Weinstein and drawing on the
economics of his torts teacher, Guido Calabresi. As the story goes, Judge Friendly returned from
the office, rewrote the opinion, and soundly rejected the Calabresian approach to imposing
liability. All that remained of the substance of the law clerk’s draft was the opinion’s dismissive
discussion of the economic approach the draft had taken.
When later asked about Judge Friendly’s opinion, Calabresi remarked, “[The] irony is that
Friendly got it right and Bruce [Ackerman] got it wrong. I cite the case as a great judge’s
response to academic theory on the basis of his own experience and intuition.” DORSEN, HENRY
FRIENDLY, at 266. Is that right? What is the basis on which our “deeply rooted sentiments,” as
Friendly describes them, lead us to decide that the costs in question are characteristic of being an
employer of seamen rather than characteristic of being a dry dock?
4. Vicarious liability and tort theory. Vicarious liability is pervasive. As one recent
commentator puts it, “most tort suits are filed against businesses, and most businesses . . . are sued
for the acts of their employees.” See Alan Calnan, The Distorted Reality of Civil Recourse Theory,
60 CLEVELAND L. REV. 159, 181 (2012). Though we have not paused to notice, the doctrine has
been involved in many of the cases we have read in this book to this point. It is necessarily
involved in every tort case against a corporate defendant, since corporations can only act through
their agents. Virtually every products liability case is a respondeat superior case. Every municipal
liability case is. Most cases arising out of economic activity seem to be vicarious liability cases,
since so much economic activity is collective or group activity in one way or another.
The prevalence of vicarious liability may have important implications for the basic logic
of tort law. For although the field is often conceived of as a law of wrongs, vicarious liability
means that many and perhaps even most tort defendants have not done anything wrong at all.
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