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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