사용자책임에 관한 미국 판례의 동향

Abstract

In the U.S., employers' vicarious liability refers to cases in which an employer is held responsible for the wrongful acts of the employee within the scope of employment. This article describes main characteristics of employers' vicarious liability under the U.S. law from a comparative law perspective. First, employers' vicarious liability is strict liability. Accordingly, the employer is held liable for the torts of the employee even if the employer is not negligent in selecting or supervising the employee. Second, under employers' vicarious liability, it is required that the man at work is an employee. In determining whether he is an employee or not, the control test is performed: physical conduct in the performance of the service is controlled, or is subject to a right of control by the employer. Therefore, an independent contractor is not considered as an employee. Third, it is also required that the tortious conduct of an employee is within the scope of the employment. In this regard, it is the general rule that employers' vicarious liability covers the employee's small deviations from the work set by his employer but not large ones. However, no hard and fast rule exists with respect to the intentional tort of an employee. Such behaviors may be within the course of employment if intended to serve the employer's interest. However, many cases reject that motive test. Additionally, the modern trend rejects vicarious liability for employee sexual misconduct, reasoning that these type of torts are purely personal in nature and unrelated to the employee's duties. Lastly, employers' vicarious liability tends to extend to the cases where the employee performs a wrongful act at cyberspace workplace or via telecommunication device.