Georgia legislature considers overturning ancient common law rule holding employers responsible for negligence of employees
4/15/07. The doctrine of respondeat superior has been deeply ingrained in Anglo-American common law tradition since long before the American Revolution. The origins of respondeat superior are disputed. Compare Holmes, Agency I, 4 HARV.L.REV. 345 (1891) (respondeat superior developed from Roman law) with Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV L.REV. 315 (1894) (respondeat superior developed from Germanic law). It was firmly established as part of the common law by 1725. T. BATY, VICARIOUS LIABILITY 28-29 (1916) (as to negligent acts).
Under this rule, employers have long been responsible for the negligence of employees acting in the course and scope of employment. Thus, if a truck driver negligently runs over an innocent motorist on the road, for example, the injured person can look to the trucking company for financial accountability. If an airline pilot were drunk and crashed a plane carrying hundreds of people, the families of the deceased can look to the airline for accountability.
Now, however, some members of the Georgia General Assembly, seeking a compromise between the National Rifle Association and the Georgia Chamber of Commerce to bar employers from prventing employees from carrying concealed guns to work, seek to sweep away many centuries of common law tradition in a week. In a classic example of legislative logrollng and back room deal making, we have learned that a "committee substitute" for House Bill 89 (the "take your gun to work" bill), will be introduced in the Senate Rules Committee on Monday morning. Section 5 of that substitute bill includes the following:
- SECTION 5.
- Said title is further amended by adding a new Code section to Article 1 of Chapter 11, relating to general provisions concerning defenses to tort actions, to read as follows:
- (a) No employer, company, firm, limited liability company, corporation, or shareholder, director, officer, manager, or supervisor thereof shall be directly or indirectly liable for any illegal act or harm or act of omission of an employee or former employee which occurs without the actual knowledge and authorization of the employer or when the employee´s actions are contrary to company policy unless it is shown by clear and convincing evidence that the actions of an employer, company, shareholder of a company, director, officer, manager, or supervisor of a company itself constituted gross negligence or reckless, willful, and wanton conduct.
- (b) Such standard shall apply whether the employee or former employee was wholly or partially engaged in the employer´s business, reasonably appeared to be engaged in the employer´s business, was or was not on the employer´s premises when the alleged act or omission of the employee occurred, or was otherwise under the direction or control of the employer when the act or omission occurred. This presumption may only be rebutted by clear and convincing evidence that the employer´s acts or omissions constituted gross negligence or reckless, willful, and wanton conduct and were a proximate cause of the damage sustained.
- (c) In every civil and criminal action to which this Code section applies, an employer shall have the right, pursuant to a pretrial motion and after opportunity for discovery, to a hearing before the court in which the person asserting a claim against an employer shall establish a reasonable likelihood of proving facts at trial sufficient to support a finding that liability for damages should be apportioned to the employer under the standards set forth in this Code section. If the court finds that this standard is not met, the claim against the employer shall be dismissed.
My understanding is that the National Rifle Association proposed the "take your guns to work" bill but the Chamber of Commerce opposed it. Then the Chamber lobbyists apparently agreed to support the NRA’s bill if they got this sweeping abrogation of centuries of tort law development in the bargain.
This is lunacy. If our legislators pass this, they are no longer conservatives. To sweep away centuries of common law tradition in a week is revolutionary. I’m willing to give some of them the benefit of the doubt on the basis that they are merely ignorant of the law and have no idea what they are doing. For those who have even a little legal background however, there is absolutely no excuse.
If their constituents knew what they were up to and understood the broadly sweeping implications, they would toss those politicians out on their ears. However, some politicians make these corrupt bargains in the shadows, trusting that the voters in their districts will never know or understand what they did, and that the special interests they serve will deter opposition candidates and keep them in office. I hope that anyone who votes to pass this will have strong opposition within their own party primary in the next election.
4/17/07. The proposal quoted above came out on Friday. Over the weekend it was distributed by email to members of the Bar, many of whom showed up at the Senate Rules Committee at 8:30 AM on Monday. I learned about the proposal Friday night in California, flew home, emailed my analysis to all members of the Rules Committee, and was at the Capitol Monday morning. Five minutes before the committee meeting convened, we learned that the elimination of vicarious liability had been stricken from the bill. While it is comforting that the proposal was killed, it is disturbing that there are people in the Capitol who would seriously propose such a complete revocation of corporate accountability.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks. other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.