Ira S. Bushey & Sons, Inc. v. United States
398 F.2d 167 (2d. Cir.1968).

Lane worked for the US Coast Guard. Late one night, he returned to shore drunk and, for no apparent reason, opened the valves on the drydock. This caused the ship to fall and damage the drydock. The drydock owner then sued to recover. The U.S. argued that Lane was acting outside the scope of his employment.

Is the U.S. liable for Lane’s actions?


The court here basically disregarded the “purpose to serve the master” aspect of vicarious liability and focused mainly on foreseeability:

What is reasonably foreseeable in a respondeat superior case is different from a negligence case.

  • Here, “Lane’s conduct was not so unforeseeable as to make it unfair to charge the government with responsibility.”
  • It is reasonably foreseeable that a crew member would cause damage either negligently or even intentionally.
  • Further, seaman have a well known proclivity to drink.

This was a strange case. Below is the Restatement’s take on scope of employment.

Restatement of the Law (Third) Agency § 7.07: Employee Acting Within Scope Of Employment

(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.

(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.

(3) For purposes of this section,

(a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work, and

(b) the fact that work is performed gratuitously does not relieve a principal of liability.