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



PROCEDURE: Defendant federal government sought review of an order of the federal trial court which granted judgment in favor of defendant where defendant claimed it was not vicariously liable for the negligence of its employee crewmember in causing damage to defendant's property.


FACTS: While a U.S. Coast Guard ship was being overhauled overnight in a floating drydock in Brooklyn, a drunken sailor returned to the ship and opened valves that flooded one side of the drydock, shifting the balance of the drydock and causing the ship to fall against the drydock wall. Parts of the drydock and part of the ship sank into the water. Ira S. ushey & Sons, Inc. (P), the owner of the drydock, sued the U.S. Government (D) in federal district court for the damage caused by its employee. The district court granted judgment for the plaintiff. The Government appealed.

ISSUE: Whether an is employer liable for an employee’s damage when it was foreseeable that the damage could have been caused in the scope of employment, even if the employee was not performing a duty for the employer?

RULE: Respondeat superior imposes liability on an employer for an employee's conduct if the employer created the risk that the conduct would occur.

HOLDING:The United States District Court for the Eastern District of New York, entered judgment holding United States liable and appeal was taken. The Court of Appeals, Circuit Judge, held that conduct of intoxicated Coast Guard seaman living aboard Coast Guard vessel while it was in drydock in opening drydock's floodgate valve thereby causing drydock to sink was not so unforeseeable as to make it unfair to charge government with responsibility for damages to drydock.

ANALYSIS: The reviewing court affirmed the trial court's judgment in favor of plaintiff holding where it was reasonably foreseeable that defendant's employee might cause some damage, whether intentionally or negligently, defendant was vicariously liable for its crewmember's negligence.