Wednesday, January 29, 2014


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Several people have been confused about the distinctions between the various doctrines that can lead to vicarious liability.  In particular, the distinction between 'borrowed servant' and 'Captain of the Ship' seems blurred.  Perhaps this will help:

FIRST, 'vicarious liability' means that you can sometimes be legally responsible for the acts of others.  Several circumstances that could lead to vicarious liability were given in lecture and in the Handout, but there still seems to be some confusion about the different types.

SECOND, 'respondeat superior' is one of the doctrines that can lead to vicarious liability.  It means, 'let the master answer'.  In law, 'master' generally means employer.  If you have hired someone to work for you he is your employee and WORKS UNDER YOUR DIRECTION.  It is because you, as his employer, are directing his actions that you are responsible for torts committed by him while he is working for you.  Imagine you are holding a sharp stick and you hurt someone by jabbing him with it.  You are responsible because you are in charge of the stick.  It is the same with your employee.  You are in charge of him and if he hurts someone while working for you, then you may be responsible for the harm.  In this case, your employee is little different from a sharp stick held in your hands and under your control.  If you hurt someone with the stick or hurt someone by the actions of your employee you may be liable.

THIRD, 'borrowed servant' is another doctrine that can lead to vicarious liability.  Imagine that an employee who has been hired and paid by someone else has temporarily been borrowed by you and is working under your direction and control.  An example [but by no means exhaustive example] is the case of a skilled operating room nurse who is a hospital employee but has been 'borrowed' by you during surgery and WORKS UNDER YOUR DIRECTION.  Basically, you borrowed the hospital's sharp stick for a little while and if you jab someone with it you are responsible.  If the borrowed employee causes harm while working under your control and direction, you can be responsible.

FOURTH, 'Captain of the Ship' is another doctrine that leads to vicarious liability.  It is NOT limited to operating room situations.  It could, in fact, apply to the captain of an actual ship who is going to be held responsible for everything that happens on the ship even if other people causing harm are not directly under his control.  For example, in the recent cruise ship wreck off the Italian coast it would not help the captain much to plead that some of the passengers got drunk, dressed up in disguises as crew, took over navigation and guided the ship onto the rocks.  The passengers are not employees of the shipowner [where respondeat superior might apply] or employees of the shipowner normally under the control and direction of the captain [so that 'borrowed servant' liability could attach to the captain], but independent agents answerable only to themselves.  But the captain of the ship is responsible for everything on the ship and that includes keeping passengers from running the ship onto rocks.  In this hypothetical, the captain of the ship could be responsible under the Captain of the Ship doctrine.  One suspects nobody would be very happy with the drunken passengers either.

In medicine, the 'Captain of the Ship' doctrine has sometimes been applied to surgeons [for example] in an operating arena.  The surgeon is doing the procedure and, like the captain of the Titanic, is responsible to some degree for everything that is done to assist him in the surgery.
Consider the example discussed in class of the anesthesiologist who fell asleep during surgery with the result that the boy on the table undergoing a minor procedure ended up brain dead.  An anesthesiologist is a licensed medical doctor and specialist in his own right and DOES NOT WORK UNDER THE DIRECTION AND CONTROL OF THE SURGEON.  He is nobody's sharp stick.  He is responsible for his own actions.

The physician anesthesiologist is not the employee of the surgeon and working under the direction and control of the surgeon so respondeat superior cannot apply. 
Also, the physician anesthesiologist  is his own man and not a 'borrowed servant' [borrowed employee]who is temporarily working under the direction of the surgeon, so no vicarious liability can attach to the surgeon under the borrowed servant doctrine.

However, under the 'Captain of the Ship' doctrine it is arguable that even though the surgeon does not fully understand anesthesiology and cannot give technical direction to the licensed anesthesiologist, the surgeon is still ultimately responsible for the care of his patient.  Like the captain of a ship who is ultimately responsible for the ship under his command, the surgeon has a duty to act when he recognizes an obvious risk to his patient even if it is from someone over whom he has no direct control.  You do not need to be a specialist to know that it is wrong for an anesthesiologist to go to sleep when he is supposed to be monitoring the flow of oxygen and other gases to an unconscious patient.  Seeing that, the surgeon should have ordered the anesthesiologist to wake up and do his job even though the anesthesiologist was not his employee [respondeat superior] or a hospital employee working directly under the surgeon's direction and control [borrowed servant].  In a situation such as this, vicarious liability may attach to the surgeon under the Captain of the Ship doctrine even though the harm was done by someone not working under the surgeon's direction.
Respondeat superior and 'borrowed servant' vicarious liability attach when someone is working under the direct control of an individual.

Captain of the Ship vicarious liability can attach even when the harm is done by someone not under the direct control of the liable party [surgeon in an operating room, for example], but that party is in a position where he is more or less responsible for everything that can affect the outcome of the procedure.

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