OTLA Trial Lawyer Winter 2022

17 Trial Lawyer • Winter 2022 on the street. For example, when trying to justify their exclusion of homosexuals as volunteers for scouting, the Boy Scouts of America argued to the U.S. Supreme Court it had the right to control its adult volunteers’ conduct (e.g. “What if [the volunteer] wears his Scouting uniform in a gay pride parade?”). Brief for BSA, at 38, BSA, et al. v. Dale, 530 U.S. 640 (2000). But in our litigation attempting to hold the scouts liable for abuse of minors by their volunteers, the scouts argued the exact opposite to try to evade responsibility. Consider how much direction the employee was given about how to complete their job, where the employee was expected to fulfill their job duties, how much discretion the employee had to forego policies, what the employee could be disciplined for, and time limitations on the employee’s duties. Remember, the focus is on conduct that directly led to the assault — if the employer had the right to control aspects of the employee’s job that had nothing to do with the plaintiff or assault, that doesn’t help your case. Even more specifically, look at what the employee was doing with the plaintiff immediately prior to committing the tort, the type of relationship between the employee and plaintiff, and whether that relationship was formed through the employee’s authorized job duties or through some other role, such as a family relationship. Depose the employee’s supervisors, other employees and others in the employee’s same position. It perhaps goes without saying, but don’t accept at face-value defendants’ or witnesses’ conclusory statements that they did not “have the right to control” the employee’s conduct. Conclusion Vicarious liability claims in this context are far from a “sure thing” in many cases. However, if you have the right facts, vicarious liability can be a powerful mechanism to seek justice for a victim of sexual assault who may have limited other options, or to trigger additional assets and insurance coverage. Ashley Vaughn is a partner at Dumas & Vaughn, LLC, 3835 NE Hancock St., Suite GL-B, Portland, OR 97212. Vaughn represents survivors of child sexual abuse, adult sexual assault and harassment, and domestic violence in civil litigation and crime victims’ rights proceedings. She contributes to OTLA Guardians at the Sustaining Members level. She can be reached at ashley@dumasandvaughn.com or 503-765-5313. 1 Agency relationships are often described interchangeably as relationships between masters/ servants, principals/agents, and employers/ employees. While it is not always legally correct to use the labels interchangeably, I will use “employer” and “employee” throughout this article for ease of reading, unless noted otherwise. “Employees” include unpaid volunteers.