The below is excerpted from an article posted by Hall Benefits Law on January 25, 2022. The full article is available here. 

The New Jersey Legislature has opened a two-year window for filing previously time-barred civil lawsuits based on allegations of sexual abuse. The legislature’s action has created an intense interest in New Jersey legal standards for vicarious liability.

The primary significance of the new filing window for sexual abuse litigants in New Jersey relates to the law that determines the liability of employers for the acts of their employees.

Generally, New Jersey employers are not liable for their employees’ intentional torts. New Jersey law considers such conduct outside the scope of employment unless motivated by a desire or intention to serve the employer. This argument commonly asserted by plaintiffs is based upon Section 219(2)(d) of the Second Restatement of Torts, known as the aided-by-agency principle.

There are no decided cases in New Jersey where a court has relied on the aided-by-agency principle to hold an employer liable except in specific situations. These limited circumstances usually implicate statutes that impose special additional duties upon defendants, such as an employer’s affirmative duty to prevent harassment under the New Jersey Law Against Discrimination.

There is an unbroken line of reported and unreported cases in which in New Jersey state and federal courts have dismissed claims against employers, based upon criminal acts, by employees, committed outside the scope of their employment, even if the criminal conduct was aided in some way by the perpetrator’s employment.

The aided-by-agency theory has been rejected more than applied in state courts throughout the country. This fact may explain why the American Law Institute abandoned the aided-by-agency principle in the Third Restatement of Torts.

While a New Jersey court has held that § 219(2)(d) did not apply to the facts of the case, it declined to hold that § 219(2)(d) was inconsistent with New Jersey law. Accordingly, the aided-by-agency doctrine does not exist in New Jersey outside of specific statutory settings.

The New Jersey Supreme Court has noted that an overly broad application of § 219(2)(d), in other settings, imposes strict liability on an employer. New Jersey state and federal courts have consistently held that nonnegligent employers are not liable for such torts, even if the employee could not have committed the tort but for the existence of their employment.

To hold employers liable for unforeseeable assaults would drastically change existing law. Any such change would be inconsistent with the New Jersey Supreme Court’s discussion of the public policy grounds on which it declined to impose a non-delegable duty — i.e., its refusal to impose vicarious liability, without fault for torts, outside the scope of employment — akin to strict liability.

Finally, the doctrine’s abandonment by its original authors should remove any doubt about its continued longevity. Thus, any attempts to apply the aided-by-agency principle into new settings are inconsistent with existing law and have a predictable fate – failure.