Vicarious Liability of an Employer for an Assault by His Servant: A Survey of Texas Cases Reexamining the “Rule of Force”

The doctrine of respondeat superior has long been entrenched in Anglo-American jurisprudence. It is under this doctrine that principles, masters, and employers have been held liable for the wrongs of individuals working under them and acting within the scope of their employment. This doctrine has been applied to all injury producing acts of the employee, whether negligent or intentional. Presently, there is considerable conflict in Texas concerning an employer’s liability for the intentional torts of his employee. Analysis of several Texas cases regarding the doctrine of respondeat superior points out that Texas courts have applied two conflicting tests in determining the liability of an employer for an assault committed by his employee. It was thought that the Texas Supreme Court had finally settled the issue with the determination of Texas & P. Ry. v. Hagenloh, in which the court established a “rule of force.” However, the majority of post-Hagenloh cases, including the only supreme court decision in the field, have merely paid Hagenloh lip service and instead followed the scope of employment test established in Houston Transit Co. v. Felder. In Felder, the court held that a plaintiff could recover damages only by showing that the aggressor was acting within the scope of his employment by the defendant. The post-Hagenloh cases have diluted the efficacy of the “rule of force” test established in Hagenloh, and it appears that Texas courts will continue the trend of the most recent cases and follow the older scope of employment test