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Mitchell Hamline Law Review

Publication Information

52 Mitchell Hamline Law Review 596 (2026)

Abstract

Employers are vicariously liable for torts committed by their em-ployees acting within the course and scope of their employment. The predominant test turns on whether the employee acted, at least in part, out of a desire to serve the employer’s interests. That test is problematic in cases involving intentional torts committed by an employee, particu-larly in sexual assault cases. Existing vicarious liability rules have been heavily criticized for the motive rule’s limiting effect, even where the nature of the employment may facilitate the tort. A minority of juris-dictions impose vicarious liability in cases where the tort is a characteris-tic risk of the employment. Some courts, including those in Minnesota, ask whether the kind of tortious action was a well-known hazard of the employment. In the Minnesota Supreme Court’s 1973 decision in Lange v. Na-tional Biscuit Co., a case involving an intentional tort committed by National Biscuit’s employee, the court rejected the requirement that an employee had to be acting in furtherance of the employer’s interest to establish vicarious liability. Instead, the court held that the employer could be held liable for the intentional tort of an employee if the tort was related to the employment and the employee acted within work-related limits of time and place. The Minnesota Supreme Court subsequently indicated that establishing this relationship would typically require ex-pert testimony showing that the tort was a well-known hazard of the employment. Yet the court has also indicated that proof that the em-ployer actually knew or should have known of the risk of such miscon-duct would be sufficient to impose liability on the employer. This makes Minnesota unique in its approach to vicarious liability, which splits vi-carious liability by applying different standards for negligent and inten-tional employee misconduct. That split is unique in American law. Minnesota’s rule for intentional torts is a minority rule. It permits vicarious liability based on proof that the tort committed by the em-ployee was generally foreseeable—a well-known hazard of the employ-ment. More recently, the Minnesota Supreme Court has accepted proof that an employer knew of specific acts of sexual assault by an employee as sufficient to impose vicarious liability. This rule is consistent with, but also transcends, the position taken by the American Law Institute in a new provision addressing vicarious liability in cases involving sexual assault.

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