Even when companies hire the best employees, they are bound to make mistakes. Other times, some make a poor hiring decision. Regardless of the situation, when employees screw up, employers could be on the hook for loads of money. Under certain circumstances, if an employee harms another person intentionally or because of their negligence, employers can be liable for damages related to the victim’s injuries.
If you have recently suffered injuries because of another person’s negligent acts, it might be in your best interest to sue their employer instead of suing them directly. It’s best to consult with an experienced personal injury law firm to evaluate your case and guide you on the best path for your situation. Until you have the chance to speak with a firm, we provide introductory information about employer liability.
Below we take a closer look at the legal theory that makes employers responsible for employee actions, the specific circumstances in which an employer must pay up, exceptions to the rule, examples of situations where an employer could be liable for damages from injuries, and what you need to prove to win your claim.
A Crash Course in Legal Theory: Respondeat Superior
Every time a personal injury lawyer negotiates a case or fights it out in court, they must support their claim with some underlying legal theory. When it comes to employers taking the rap for employee screw-ups, Respondeat Superior justifies victims taking legal action against an employer after suffering injuries. Like a lot of other legal jargon, Respondeat Superior is a Latin phrase; it translates to “let the master answer.”
The doctrine only applies when an employee harms someone while performing duties within the scope of their employment, which means employers are not typically responsible for independent contractors they hire to perform work-related tasks. Additionally, the thought that underlies Respondent Superior is that employers have costs of doing business. Employee negligence, recklessness, and misconduct are some of those costs. If an employee caused injury to another, it’s a risk of doing business, and the employer should bear financial responsibility.
Detour and Frolic in Employer Liability Claims
When insurance companies and courts determine employer liability when an employee causes bodily harm to another, they look to whether the injury happened while the employee acted within the course and scope of employment. Sometimes, it’s easy to determine liability. In other cases, it’s more difficult to hold an employer liable. The question of scope and course of employment sometimes gets muddied when an employer mixes business and pleasure. Placing liability on the employer often depends on whether an employee was taking a detour or engaging in frolic.
The difference between a detour and frolic distinguishes between an employee who causes a job-related accident and an employee who causes an accident unrelated to employment, even though they might be working. A detour is a minor deviation from job duties and instructions from the boss but still related to the task at hand. A frolic is a much larger deviation from an employer’s instructions and usually benefits the employee personally.
Suppose an employee harms someone while on a detour, the employer will likely be liable for damages. If the employee was on a frolic when they harmed someone, the employer will likely not be liable for damages related to injuries and associated losses.
In many industries, it’s common for employers to provide company vehicles to their employees. For example, construction companies might give a truck to their workers, sales teams in different industries sometimes provide vehicles to travel to clients, and companies who do repairs at other businesses or homes might have trucks or vans to go between clients. Consider the following examples of employees using a company vehicle to highlight the difference between a detour and frolic:
After a long day at work, a construction worker decides to go to a local bar and restaurant to have dinner. His wife uses their personal family vehicle to run errands, so he takes his company vehicle to dinner. On the way home, after having a few beers, he runs a stoplight and broadsides another vehicle in the intersection. Ambulances arrive and take the other driver and passengers to the hospital because they sustained serious injuries.
The construction worker used the company vehicle for personal reasons and was not acting within the scope of employment when the accident occurred; this is an example of frolic. In this situation, it’s highly doubtful a court would find the employer liable for damages related to the accident and injuries.
The same construction worker above heads to a job site at the beginning of his workday. Once he arrives, he realizes he is missing some supplies he needs to complete the job. Feeling rushed to get the job done, he races back to the warehouse to get what he needs. He figures that as long as he’s headed back to the office, he better run to the ATM at the bank, so he has some cash for lunch. When he pulls out of the bank parking lot, he doesn’t look both ways, pulls in front of a car, and causes a serious accident.
Like above, the driver and passengers must go to the hospital for treatment because of their injuries. The construction worker made a slight detour to the bank, but he was on duty and acting within the scope of his employment. In this situation, it’s likely a court will hold the employer financially responsible for damages.
Proving Negligence in Employer Liability Claims
In your run-of-the-mill personal injury claim, you must prove the person who harmed you was negligent or willfully harmed you for the defendant to be financially liable for injuries. When you choose to sue an employer for the actions of their employees based on Respondeat Superior, you only need to prove the employee who harmed you was negligent. Once you prove negligence on behalf of an employee, the employer is strictly liable for damages.
This type of strict liability is referred to as vicarious liability. Vicarious liability is a legal theory that rests on the notion that one party has the right, capability, or obligation to control another party. When an employer/employee relationship exists, the employer authorizes specific duties, tasks, or actions. If an employee harms someone in the course of their employment, the employer is often liable for damages. You can think of Respondeat Superior as a type of vicarious liability.
If someone intentionally harms you or hurts you while committing a crime, a court will probably not find the employer liable for damages. Although you can hold employers vicariously liable for the negligence of their employees, they are typically not liable for wanton harm or criminal acts. A court might make an exception if the employer required the wrongful act or if the employer knew that the wrongful acts would occur.
When Employees Commit Wrongful Acts Outside the Scope of Employment
Depending on the circumstances of your injuries, you might still have a legal cause of action against an employer even if an employee harmed you outside the scope of their employment. Three specific situations that serve as examples are negligent hiring, negligent retention, and harassment. They are often used to justify suing an employer when their employee commits a criminal act.
You might have recourse against the employer if you can prove they have negligent hiring practices, meaning they don’t take reasonable care to hire employees. One of the most common claims involving negligent hiring is that an employer failed to do an adequate background check before hiring someone. The type of check depends on the situation but most often includes driving history and criminal history. Additionally, taking care in following up with references, especially when employees have to deal with customers or clients.
If you return to Example A discussed above, the construction worker had a few beers and caused an accident. He was not on the clock, but he was in a company vehicle and committed a crime—drunk driving. In this situation, if the accident victims can prove that the worker had a history of DUI violations and his employer hired him and provided him with a company truck without checking his driving history, they could be liable for damages for the drunk driving accident.
Had the employer done the proper background check, they would likely not have hired the worker or would not have allowed him to drive a company vehicle. In turn, the accident would not have happened, and innocent people would not have suffered injuries.
Negligent retention is the idea that an employer does not fire a dangerous employee when they know foreseeable issues. It’s not much different from negligent hiring, except the employer finds out about issues after making a hiring decision and takes no action to alleviate the situation. Negligent retention also fits a drunk driving scenario like above if the worker received one or more DUI violations and the company took no action to remove the driver from their vehicle.
However, negligent retention, like negligent hiring, can be the justification for legal action when a worker commits violent criminal acts while working, such as sexual assault, theft, battery, or murder.
Some examples that could potentially fall under negligent hiring or retention, depending on when or if an employer learned of a threat, include:
- A private school hires a teacher who has been convicted of sexually assaulting a minor. The school would likely be liable if the teacher assaulted a student because it hired a known sexual offender and gave him access to students who are minors.
- A long-care nursing facility hires a caregiver who served time in jail for identity theft and fraud. If the caregiver steals from or commits financial abuse against one of the residents, the nursing home likely would be liable. They hired a person convicted of stealing from vulnerable people and gave the person access to additional victims.
- An electric company hires a technician without performing a complete background check. They task the technician with visiting customer homes to read electrical meters, allowing the electric company to create monthly bills. The technician has been convicted of rape and murder. The first opportunity he has, he rapes a customer in her backyard. A court likely would find the electric company negligent for hiring or retaining their technician and giving them access to people’s homes, making the company liable for damages related to injuries.
Harassment in the workplace is not only illegal, but it continues to be a large liability issue for employers. Sexual harassment and discrimination in the workplace violate federal laws, so taking legal action requires an entirely different set of procedures. Workers are protected from discriminant treatment based on race, color, sex, religion, national origin, age, disability, and more. Those who experience harassment in the workplace must file a complaint with the United States Equal Employment Opportunity Commission.
Workplace harassment can also include retaliation against a co-worker because they filed an EEOC complaint or filed a workers’ compensation claim. When managers, supervisors, or coworkers create a hostile work environment, they open their employers up to liability damages related to harm the victim experienced. Sometimes workers suffer physically if another worker attacks them. Other times harassment causes emotional distress and can impact someone’s ability to work.
If you have suffered harassment of any kind in the workplace, you could receive compensation for your emotional, physical, and/or financial injuries if you can prove:
- Your employer did not take reasonable actions to prevent or correct the harassment you experienced.
- You took measures to report or complain about your harassment to management.
Regardless of your injuries and who caused them, you could have a cause of action against the person’s employer. An experienced personal injury law firm can evaluate your case and advise you on whom you should sue to recover compensation for your injuries.
Since starting his firm in 1999, Stewart J. Guss has had the honor of representing clients from all over the world, helping them recover from even the most catastrophic injuries.
Today, thanks to a strong belief in those values of compassion, respect, and approachability, the firm has grown to employ over 120 legal professionals in numerous offices across 4 states, with nationwide reach.