Date: Wed, 13 Oct 2004 09:53:10 -0700

From: Stephen Sugarman

Subject: VL

From the US perspective, it seems to me that it is not surprising that in close cases courts would be inconsistent, and in a certain sense incoherent, in deciding whether vicarious liability applies.

In my view, this is because the underlying justifications for VL are disputed. In core cases in which pretty much all of the justifications point in the same direction this not a problem. But when only some of the justifications suggest VL, there will be disagreements, especially from those who strongly value the justification(s) pointing the other way.

I believe that this type of problem pervades tort law. E.g., why is there strict liability for certain things, but not others? Why is customary practice the measure of care in some settings, but not others? Why are some victims able to sue for the "loss of a chance," but not others? Why do certain parties get to take advantage of "luck" that lowers the damages they must pay to their victim in the narrowest "but for-making P whole" sense, and yet others parties cannot?

Steve Sugarman

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