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Legal Memorandum: Foreseeability in a Vicarious Liability Case

Issue: Under the law of Vermont, when determining foreseeability in a vicarious liability case, must a plaintiff show the employer knew of similar behavior by the employee in the past?

Area of Law: Employee Law, Personal Injury & Negligence
Keywords: Foreseeability; Vicarious liability; Knowledge
Jurisdiction: Vermont
Cited Cases: None
Cited Statutes: None
Date: 12/01/2009

The best evidence to show foreseeability is that the defendant knew or should have known of actual abusive behavior by its employee in the past.  However, as with one line of cases (e.g., Doe v. Liberatore, 478 F. Supp. 2d 742 (M.D. Pa. 2007), Schovanec v. Archdiocese of Okla. City, 188 P.5d 158 (Okla. 2008), Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997), Moses v. Diocese of Colo., 863 P.2d 310 (Colo. 1993), Brown v. Youth Servs. Int’l of S.D., Inc., 89 F. Supp. 2d 1095 (D.S.D. 2000)), a plaintiff may be able to argue that risk should not be measured exclusively by such a narrow gauge—that, instead, there are other factors that may make it foreseeable that plaintiff was placed in danger.  In addition, the rule should apply that in certain circumstances, an employer has a duty to investigate and find out certain information.  As stated in a leading treatise:

No person can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded….  On the other hand, if the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone….  As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.

W. Page Keeton, et al., Prosser and […]