Hybrid Torts and Vicarious Liability Under the Jones Act: Testing the Limits of Course and Scope

Charles E. Rothermel | Comment

The purpose of this Comment is to identify and discuss the often perplexing nuances of a maritime employee’s “course and scope of employment” as it pertains to Jones Act negligence claims against a maritime employer under vicarious liability. The law is fairly well developed, though not settled, with respect to whether purely intentional and purely negligent acts fall within the employee’s course and scope. However, few courts have undertaken a meaningful analysis of course and scope in cases involving “hybrid torts,” where a seaman negligently inflicts injury upon a fellow employee but knowingly violates a workplace safety rule. Such conduct lies somewhere between mere negligence and intentional tort. Vicarious liability for these hybrid torts is the main focus of this Comment.

Several points require attention: (1) the distinctions and similarities among the course-and-scope elements required in maintenance and cure claims, unseaworthiness claims, and Jones Act negligence claims; (2) the distinction between the course-and-scope requirement for the injured seaman to recover for the employer’s direct negligence and the separate requirement that, in vicarious liability cases, the tortfeasing employee must also be acting within the scope of his employment; (3) the distinction between the course-and-scope tests applied to intentional torts and negligence; and (4) the distinction between employment-status tests, which are based on common law agency principles, and narrower Jones Act scope-of-employment tests.