Imputed Negligence and Vicarious Liability: The Study of a Paradox

Abstract

The lawyer of today takes vicarious liability as a matter of course. And, by pretty much the same token, he takes the idea of imputed contributory negligence as a matter of course. By general American law, Truck Owner - although altogether free from any personal fault - is liable to Highway Traveler who is injured by the negligence of Truck Owner's employee, Driver, while Driver is acting in the scope of his employment. And if Highway Traveler negligently damages the truck, Owner will be barred from recovering for this damage if Driver's negligence also contributes to causing it. This is all perfectly familiar doctrine, and it therefore seems natural. But upon further analysis and after a longer look at history, several things about this situation will loom up as passing strange. These things in turn will raise the inquiries of whether vicarious liability or imputed contributory negligence may be justified at all; and, if either of them may be, whether they should go hand in hand as they generally do now.