Outsourcing's Tort Side

WASHINGTON (07/24/2000) - Respondeat superior is one of those Latin expressions that lawyers and many non-lawyers like to use as a shorthand way to refer to an entire body of rules. Translated, it means: "Let the master answer." The phrase refers to an employer's or principal's responsibility for the actions of an employee or agent.

As the government outsources more of its functions to independent contractors, the doctrine of respondeat superior will apply more. However, in the unusual world of government contracting, the doctrine is subject to some special limitations.

Typically, under the concept of respondeat superior, a principal will be held accountable for the wrongful actions of an employee as long as the employee was acting within the general scope of his or her employment at the time the wrong was committed.

In contrast, a principal will not be responsible for the wrongful actions of an independent contractor or the contractor's employees, even if the wrongs are committed while the contractor is working for the principal, subject to certain exceptions. The two most important exceptions apply when the principal retains oversight of the contractor's means of performance and when the work performed is inherently dangerous.

The exceptions promote important public-policy goals of preventing a principal from escaping responsibility merely by hiring an independent contractor to retain employees instead of hiring the employees itself. When the principal is the federal government, however, those exceptions are subject to further limitations.

In Alexander v. United States, a court ruled that the government was immune from liability for the death of a contractor's employee who was working in a government-owned/contractor-operated ammunition loading plant. Even though a private party would have been liable, the government could not be held responsible because the operation was inherently dangerous.

The Federal Tort Claims Act, which must be followed when suing the federal government, specifically states that the government is not liable for the wrongful actions of an independent contractor's employees. On the other hand, in Rooney v. United States, a court ruled that the government could be liable for harm committed by an independent contractor's employees if that harm resulted at least in part from negligence by a government employee. In Hines v.

United States, a court found the government responsible when an intoxicated employee of an independent contractor hauling U.S. mail caused an automobile accident in which two people were killed. The court found that the Postal Service was obligated to screen and approve the contractor's employees, and the Postal Service's negligence was a partial cause of the accident.

Whether the government can be held responsible for harms caused by a contractor's employees in a particular case is a difficult and fact-dependent question. But, because it has "deep pockets," the government can expect to be named as a party in many cases.

--Peckinpaugh is corporate counsel for DynCorp, Reston, Va.

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