Section 43 Respondeat Superior

• Library: Prof Liability 2005

Respondeat superior is an agency theory used frequently in tort cases. The Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997), Court dismissed an agency argument, stating, while ruling on a preliminary motion to dismiss, that sexual misconduct is not within the scope of employment of a priest and is even forbidden, so there could be no agency for sexual misconduct. Gibson, 962 S.W.2d at 246; see alsoH.R.B. v. J.L.G.,913 S.W.2d 92, 97 (Mo. App. E.D. 1995) (no agency for clergy sexual misconduct), further proceedings after remand, H.R.B. v. Rigali, 18 S.W.3d 440 (Mo. App. E.D. 2000).

But a more reasoned approach, according to Professor Dan Dobbs, would be to recognize that intentional torts committed by an employee are within the scope of employment when the workplace offers specific encouragement or opportunity or somehow elevates the likelihood of employee misbehavior. 2 Dan B. Dobbs, The Law of Torts 910–17 (West Group 2001). This is a foreseeability test, not a reasonableness test, and it concerns conduct forbidden by the church, so it does not delve into religious doctrine protected by the First Amendment.

In Fearing v. Bucher, 977 P.2d 1163 (Or...