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Americans have, of course, scoffed at the notion that we should be held responsible for a congressman's reckless driving, despite the fact that plaintiffs have willingly made the same argument to exploit "deep pockets" for decades...


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We Didn't Mean Our Pockets...

By Erin Murphy

Much to taxpayers' dismay, the recent revelation that we may get stuck with the bill for the reckless driving of former Rep. Bill Janklow (R-SD) has reaffirmed the age-old adage that what goes around comes around.

Janklow, who is currently serving a 100-day jail sentence for second-degree manslaughter and reckless driving after he collided with and killed a motorcyclist in August, now faces a civil wrongful death suit that could well result in a sizable verdict. But because he was driving home from a speech to Korean War veterans at the time of the accident, the Justice Department concluded that Janklow's actions were "official business" within the scope of his duties as an elected official. Thus, under the Federal Tort Claims Act, Janklow's employer — the federal government — must pay any verdict, meaning that taxpayers will ultimately foot the bill.

Americans have, of course, scoffed at the notion that we should be held responsible for a congressman's reckless driving, despite the fact that plaintiffs have willingly made the same argument to exploit "deep pockets" for decades under the doctrine of respondeat superior.

Like the Federal Tort Claims Act, respondeat superior is based on the commonly accepted theory that an employer should be held liable for any damages resulting from the misdeeds of its employees. Both respondeat superior and the FTCA are limited by the notoriously vague standard of actions occurring "within the scope of the employee's duties," thus leaving courts with great latitude in deciding whether actions like driving between work-related functions are recoverable.

Respondeat superior originated with the argument that when an employer asks an employee to perform a risky activity, the employer should pay the costs if any third party injuries result. But over time it has evolved into the public policy doctrine that employers are generally in a better financial position to compensate the victim and spread the costs to the public, i.e., let he who has the deepest pockets pay. Thus, in most jurisdictions it is considered no-fault liability — meaning a plaintiff need not prove the employer acted wrongfully or negligently in hiring the employee, but rather only that the employee's actions were within the scope of that employment.

Following this logic, the FTCA is entirely reasonable — the federal government has much deeper pockets than an individual congressman, and it unavoidably spreads the costs to the public through taxes. And just as respondeat superior encourages employers to think more carefully before they hire, the FTCA might encourage Americans to look a little closer before they elect.

Understandably, most Americans don't take kindly to the notion that we should have to pay for someone else's misconduct. Sure, we know congressmen undoubtedly do some driving during their tenure, but that doesn't mean it's our fault when they do it recklessly. After all, public officials are elected with the abundantly clear expectation that they won't recklessly endanger the lives of their constituents; thus, how could it possibly be within the scope of their duties when they do so?

But this argument flies in the face of the existing standard in the employment context, where the scope of duties has expanded to hold employers liable for employee theft, assault and, most recently, sexual misconduct.

In 1983, the Minnesota Supreme Court held that a psychiatric clinic could be responsible for a psychiatrist's sexual misconduct under the theory that "it was only through his relation to the plaintiffs as a therapist that [the doctor] was able to commit the acts in question." In 1999, the Oregon Supreme Court ruled that the Catholic Church could be held liable for a priest's sexual assaults when the conduct was the "culmination of a progressive series of actions that began with and continued to involve [the perpetrator's] performance of the ordinary and authorized duties of a priest."

These holdings are not based on the idea that the employer knew, or even should have known, that the employee was a potential sexual offender. Rather, they are said to have imposed some sort of heightened risk merely by allowing their employees to develop the necessary close relationships between a psychiatrist and patient or a priest and parishioner. Of course, the idea that the employees for a moment believed sexual misconduct was within the scope of their duties is preposterous, yet this hasn't kept courts from holding employers liable.

As long as we are willing to turn a blind eye to imposing these responsibilities on employers, we have little cause for argument when the same standard leaves us stuck with the bill. If employers must account for employee theft, assault and sexual abuse, regardless of their knowledge whether the employee was untrustworthy, it's certainly not much of a stretch to hold the electorate responsible for an elected official's reckless driving. Nothing more than sheer hypocrisy can dismiss such logic merely because we never thought the deepest pockets available would be our own.


Erin Murphy is a Contributing Editor with the Center for Individual Freedom.


[Posted March 18, 2004]

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