'Am I My Brother's Keeper' (Or, The Continued Evolution Of Respondeat Superior Liability In Nevada)

According to Genesis, 4:8-10, after Cain killed his brother Abel, the Lord said to him, "Where is your brother?" Cain replied "Am I my brother's keeper?" There are many additional situations in which society demands that we become our brother's keeper as well. One of those situations is within the context of the employer/employee relationship. With respect to that relationship, the law deals with the dynamic tension articulated in the age old question "Am I my brother's keeper" through the doctrine of Respondeat Superior. Traditionally, the doctrine of Respondeat Superior said that the law will hold an employer liable for the wrongful acts of their employees if an employee commits an act while under the control of the employer and within the scope of employment. Molino v. Asher, 96 Nev. 814, 817, 618 P.2d 878, 879 (1980). The degree of control the employer exercised over the employee determined whether liability would attach for the employees conduct. See, Societa Per Azioni De Navigazione Italia v. City of Los Angeles, 31 Cal. 3d 446, 459, 645 P.2d 102, (Cal. 1982). In fact, "'[c]ontrol is probably the most important factor'" in determining whether an employment relationship exists . . . in common law cases. Id. citing United States v. Webb, Inc., 397 U.S. 179, 192, 25 L. Ed. 2d 207, 215 (1970). And it makes sense that control would be the basis for liability because absent control, the employer has no power to affect the employee's conduct and therefore cannot prevent any harm that may result from it. Society can impose upon no person a duty to accomplish what is impossible.

This article will discuss how, from 1945 to 2015, Nevada has eroded an essential element of the traditional doctrine of Respondeat Superior.

DISCUSSION

In J.C. Penney Co. v. Gravelle, 62 Nev. 439 (1945), the Nevada Supreme Court considered whether it was within the scope of a security officer's employment when he assaulted a third-party after that third-party prevented him from catching a thief. The Court held that "where an assault by an employee is purely personal, having no connection with the employer's business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer." The Court further cited section 235, American Law Institute Restatement on Agency, which states: "An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to services on account of which he is employed." As of 1945, the Nevada Supreme Court clearly required a showing that the employee's wrongful act was done with the intent of furthering an employers' legitimate business interest. The Court ruled J.C. Penney was not liable because the act was not done with the intent of furthering J.C. Penney's interests but instead was an act of revenge committed by the employee on his own behalf.

In Prell Hotel Corporation v. Antonacci, 86 Nev. 390 (1970), the Court again considered the issue of whether employers can be held liable for the intentional torts committed by their employees. In Prell, a guest playing "21" at the Aladdin Hotel got drunk, lost a significant amount of money, got angry and called the dealer a derogatory name. The dealer acted like nothing happened, dealt one card to each player and promptly knocked the guest unconscious with a single punch to the face. In discussing whether the employer should be held liable, the Court noted that:

Early doctrine would not admit that a willful tort could be within the scope of employment. Laski, Basis of Vicarious Liability, 26 Yale L.J. 105, 118 (1916). This inflexible, arbitrary view has gradually been eroded, and the concept of scope of employment enlarged. Of course, if the employee's tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable. Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969); J. C. Penney Co. v. Gravelle, 62 Nev. 434, 155 P.2d 477 (1945). Where, however, the willful tort is committed in the course of the very task assigned to the employee, liability may be extended to the employer. This is particularly true in those cases where the employer, by contract, has entered into some relation requiring him to be responsible for the protection of the plaintiff. Forrester v. Southern Pacific Co., 36 Nev. 247, 134 P. 753 [392] (1913); Quigley v. Central Pac. Ry. Co., 11 Nev. 350 (1876).

Prell, 86 Nev. at 391-92. The Prell Court held that the employer was responsible because the employee's wrongful act "occurred within the scope of the very task assigned to him, that of dealing '21.' In these circumstances the...