Under respondeat superior, an employer or principal can be held legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency. So under the doctrine of respondeat superior - which literally means "'let the superior make answer" - an employer is vicariously liable for the tortious conduct of an employee when the employee is acting within the scope of the employment relationship. A "master" - a painfully archaic expression if there ever was one - is liable for the acts which his servant commits with the actual or apparent authority (reasonable people would think the servant had authority) of the master, or which the servant does within the scope of his employment,. The master can also ratify the act with the knowledge of all the material facts. If you are looking for the Latin proverb - is there a lawyer who does not like Latin? - that summarizes respondeat superior, it is "qui facit per alium facit per se" ("the act of the servant, done within the scope and in the exercise of his employment, is in law the act of the master himself").
The doctrine of respondeat superior is alive in different variations in all 50 states. In Maryland, and and in most states, the first step in the determination of liability is whether an agency relationship exists. There are three requirements:
AGENCY, PRINCIPAL; AGENT
(1) Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.
(2) The one for whom action is to be taken is the principal.
(3) The one who is to act is the agent
This test comes from the Second Restatement of Agency and is the test adopted by the Maryland court.
Every year, there are legal malpractice cases that stem from lawyers screwing up one fundamental principal: releasing the servant releases the master from liability. For example, you cannot settle with or release with prejudice a doctor and maintain a claim against the hospital for the actions of the doctor.
Under the doctrine of respondeat superior, a tort plaintiff may recover damages from an employer without having a judgment against the employee. This is key: in many cases you would rather be fighting a large, faceless hospital or trucking company than you would a nice truck driver or doctor.
But respondeat superior is a softball. Most lawyers easily spot that ideal of vicarious liability. But if respondeat superior does not fit, there are other options to finding a deep pocket that are available to plaintiffs' lawyers:
Counsel must consider all four of these potential options in looking for additional insurance coverage or money to satisfy a settlement or verdict.