With the change of the weather and the holiday season around the corner, more and more people will find themselves in business locations and interacting with these businesses’ employees. The risk of injury and loss seem to increase at this time of year and there are a few things we need to take note of as a customer.
Q- Can an employer be held liable for the injuries and other damages caused by an employee?
This is a very interesting and important question, and like most legal questions, it has many answers depending on the facts of a particular incident.
A- In general, an employer IS responsible for actions of their employee when the employee is acting within the course and scope of their employment.
This theory of legal negligence is called, ‘vicarious liability’. Under this legal precedence, an employee while acting in his normal job duties is covered by his employer for negligence.
Example- Let’s say that a tire repairman is fixing a customer’s tire and in so doing a tire iron accidently scrapes the paint of the vehicle. The employee was just doing his job and as the saying goes, “accidents happen”. In this case it was an accident and the employer will repair the damage as it was an accident. Now if the employee is malicious and damages the car on his own, it is outside the normal work activities, therefore, the employer is not required to pay to have the vehicle repaired. Note, he is not legally required, however, in good business practice he will want to have his customers happy, therefore, the business owner might pay for the repairs himself rather than submit and insurance claim which usually does not cover intentional acts or damage.
Recently, the US District court re-affirmed this legal theory, along with other issues, in the following case, Sally Haeger v. Target Corp., et al., United States District Court for the District of Maryland, No. WMN-11-1280 (July 17, 2012).
It is public policy in most states that the acts of an employee are the same as if the employer was performing the particular act themselves. This vicarious liability allows for an injured person to seek remedy at the hands of someone or some entity that would have the means to cover the losses cause by negligence. There is colloquial jargon for this type of liability, the ‘deep pocket theory’, however, this term is overused in a negative connotation and in this discussion we are speaking to employer responsibility of the acts or omissions of an employee, not a method to soak a party for monetary gain.
Further, the public policy of holding an employer responsible for the actions of their employees is reasonable as it promotes education and training of the employee. This is of more significance as the job duties become more complex and especially dangerous with tools, chemicals, use of large equipment and the like. Employers often take care to teach safety and responsibility courses, in many jurisdictions and many industries, these courses are mandatory. OSHA and MSHA are two large governmental entities that are dedicated to training and enforcement of worksite safety.
4 THINGS TO DO IF INJURED BY AN EMPLOYEE OF A BUSINESS:
1. Document- takes notes on who, what, where, when, and any other information that might be useful on the details of your loss or injury. Photographs could be useful to you as well.
2. Witnesses– find anyone who might have seen or heard what happened at the business.
3. Medical Attention– If you are injured at a business get medical attention as soon as possible. Call 911 if you have to, but take measures to take care of yourself first.
4. Consult and Attorney– A qualified personal injury attorney will know how to help you in your recovery and assist you in protecting your rights. It is important that you are made aware of all the legal issues that surround cases of injury and loss at someone’s place of business and caused by the employees of that business.
Special Note:
If you were injured by an employees’ intentional act, one that was either malicious or grossly intentional, you should know how to handle this as well:
- Call the Police if the act was criminal in nature, such as an assault.
- Notify the employer so action might be taken to mitigate possible loss or damage to other customers.
- (Same as above 1.-4.)
