When is an Employer Reponsible for its Employees?
Feb 14th, 2009 by admin
Many accidents and injuries are caused by employees while they are on the job. If you have been seriously injured by an employee, it is often the case that the employee will not have the money, insurance, or other resources to pay for all of your injuries and associated expenses and damages. Therefore, in such a case, we look to the employer for compensation.
Generally, an employer is “vicariously liable” for the injuries and property damage that its employees cause during the course and scope of their employment. For instance, if the driver of a delivery truck owned by Acme Corporation causes an accident on his way to or from making a delivery, Acme Corporation is liable for the resulting injuries, deaths, and property damage.
The rule of vicarious liability was based upon the fact that the employer had control over its employees’ conduct and therefore it was fair to hold the employer legally responsible (“liable”) for the employee’s careless (“negligent”) acts that caused injury or damage. Today, the policy is based upon the policy rule that requiring an employer to pay for the wrongful conduct of its employees is a policy rule that involves the allocation of risk in which the burden is placed on the employer as a required cost of doing business. The employer is able to spread its risk through prices, rates, or the costs of liability insurance among its customers. Thus, the employer’s liability now extends beyond its actual or possible control of its employees to injuries and damage that are inherent in or created by the business.
Generally speaking, the employer is responsible for the employee’s wrongful conduct only if the employer was acting within the “scope and course” of his or her employment. That used to require that the activity benefit the employer or the employer had the right to control the employee’s conduct while performing the activity. Today, the determination of whether an employee was acting within the scope of his or her employment at the time he or she committed the wrongful act turns on whether or not (1) the act was either required or incidental to the employee’s duties, or (2) the employer could have reasonably anticipated (that it was “foreseeable”) the employee’s misconduct as an outgrowth of the employee’s duties.
“Foreseeability” merely means that, in the context of the particular business, an employee’s conduct is not so unusual or startling that it would be seem unfair to include the injuries or damages it causes among other costs of doing business. The employer is liable for its employee’s wrongful conduct if the conduct may fairly be said to be characteristic of, typical of, or broadly incidental to the employer’s activities. It is no longer necessary to prove that the employee was intending to benefit the employer at the time he or she committed the accident or did the wrongful act complained of.
In determining whether the employee was acting within the scope of his or her employment at the time of the incident, factors considered include the intent of the employee, the nature, time and place of his or her wrongful conduct, the employee’s actual or implied authority, the work the employee was hired to perform, the incidental acts the employer reasonably could have expected the employee would do, and the amount of freedom given the employee in performing his or her job duties.
In some cases, a question arises as to whether the employee deviated so much from his job that it would not be fair to hold the employer responsible for any and all resulting injuries and damages. The fact that an employee, at the time of the incident, was not engaging in the ultimate goal or his or her employment does not necessarily mean the employer is off the hook. Acts that are necessary to the comfort, convenience, health, and welfare of the employee while at the work or on the job, though strictly personal to the employee and not acts of service to the employer, do not take the employee outside the scope of his employment. Where the employee combines his own business with that of his or her employer, the courts generally do not draw a fine line as to exactly whose business the employee was attending at the time of the accident and therefore hold the employer liable for all of the damages.
However, when an employee, for entirely personal purposes, departs from the employer’s business, the question become whether the departure was minor or substantial. Minor deviations from the employer’s business are considered foreseeable and thus the employer is vicariously liable for any harm caused by the employee’s careless conduct during such time. If, however, the departure is major, or substantial, the departure is considered unforeseeable and the employer cannot be held vicariously liable. Every case is different and considered on its own set of facts.
The so-called “going and coming” rule generally provides that an employer is not liable for accidents of its employees while they are going to work or coming home, i.e,, while they are commuting to and from the job. Under this rule, the employee’s service to the employer begins when he or she arrives at the place of employment, when he or she crosses over the “premises line.” There are a number of exceptions to this rule. For instance, if the employer asks the employee to pick up a part or do an errand on his or her way to work or on the way home, the employer can be held liable for the injuries and damages caused by the employee’s negligence that causes an accident.
The going-and-coming rule also does not apply if the employee is required to use his or her vehicle while on the job, such as to go meet with clients or go from one of the employer’s store to another. The employer is financially responsible for accidents caused by the employee while commuting if the employee’s home qualifies as a “second jobsite,” which generally means that the employer requires the employee to work at home as a condition of his or her employment. The fact that an employee voluntarily takes work home to do usually is not in and of itself sufficient to meet the “second jobsite” test.
A number of cases involve the liability of an employer for injuries caused by a drunk employee driving home after becoming intoxicated on alcoholic beverages supplied by the employer. If the employer furnished the liquor, it may be held vicariously liable for injuries caused by the employee on his or her home, despite the fact that under normal circumstances (i.e., when the employee is driving home sober), the going and coming rule would ordinarily prohibit the employer from being held vicariously liable. Where an employee becomes intoxicated at his or her employer’s Christmas or other party, which the employee was required or expected to attend, and gets into an accident while driving home, the employer is liable to persons injured or killed in the accident.
While the vicarious liability of an employer for an employee’s careless act usually involves ordinary carelessness, or negligence, in appropriate cases the employer can be held vicariously liable for an intentional assault by the employee. The test used to determine whether the employer can be held liable in such a situation is this: If the assault was motivated by personal malice and does not arise out of the employment, the employer is not vicariously liable; otherwise, if the assault does arise out of the employment, the employer is vicariously liable.
Where an injury or death is intentionally inflicted, in addition to the usual elements of damages—medical expenses, pain and suffering, lost wages, property damage, and the like—“punitive damages” may be recovered to punish the wrongdoer for having committed the assault and to deter him (and serve as an example to others) not to repeat such conduct. When an employer can be held vicariously liable for the employee’s intentionally wrongful acts, it can be held liable for the usual types of monetary damages involved (i.e., medical expenses, lost wages, pain and suffering, property damage, etc.). However, the employer usually cannot be ordered to pay the punitive damages. In order for the employer to be required to pay punitive damages for an employee’s intentional misconduct, the employer must itself have been independently at fault.
In some cases, the employer can be held directly liable (rather than vicariously liable) for its own fault (“negligence”) in hiring, training, supervising, or retaining an employee. For instance, if the employee has caused several accidents on the job because he or she was under the influence of alcohol or drugs, the employer may have an independent duty to fire that employee to protect others. The employer may be negligent in hiring an employee. For example, suppose a janitor or teacher at a day care center or preschool molests one or more of the children, or a priest at a church molests altar boys. The employer may be held independently liable for its negligence in failing to conduct a thorough background check on the prospective employee before he or she was hired, which check would have revealed previous cases or instances of child molestation or other criminal conduct involving the person.
If you have been injured or a loved one killed in an accident involving another person’s employee, you should contact an experienced personal injury law firm as soon as possible. If the employee worked for the state, city, county or other public entity, you need to be aware that it is generally necessary to file a claim for damages with the proper governmental agency within six months of the date of the incident. An experienced personal injury attorney will know how and where to file this claim on your behalf.
It is also important to contact an experienced personal injury as soon as possible after the accident, as the attorney may want to send his or her investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused of contributed to the accident. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.
An experienced personal injury attorney can also help with seeing to it that you obtain proper and thorough medical care for your physical and emotional injuries suffered as a result of the accident. An experienced personal injury law firm can work to get you full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages.
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