Employer Vicarious Liability in Personal Injury

In many personal injury cases involving an employee of a company, the lawsuit need not target only the employee. Though an employee may have caused your injuries, the company itself may be liable under theories of vicarious liability and negligent supervision. In this way, a personal injury lawsuit that initially appears to be of minor significance (supposing that the employee who caused your injury does not have the income or assets necessary to pay for your damages, even if your suit is successful) may actually turn out to be significant if a more sizeable defendant is brought in – here, the employer-company.

Vicarious Liability in The Employer-Employee Relationship

Under vicarious liability, otherwise known as the doctrine of respondeat superior, an employer can be found liable for the harm caused by their employees.

California Civil Jury Instruction 3701 provides useful guidance:

An employer is liable for their employee’s harm if: 1) the employee harmed the plaintiff; 2) the employee was, in fact, employed by them at the time that the harm was caused; and 3) the employee was acting within the scope of his or her employment when the harm was caused.

Perhaps stated more elegantly, “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995))

As a matter of public policy, vicarious liability in the employer-employee relationship is intended to shift the risk of doing business over to the employer, who is better equipped (financially, structurally) to bear such risks. The court in Bailey v. Filco, Inc. (1996) wrote: “The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as a part of doing business.”

Ultimately, what often determines vicarious liability in many real world personal injury scenarios is whether the employee was acting within the scope of their employment. This is a highly fact-specific determination, however, which in turn requires the argument of a skillful attorney. In some circumstances, for example, an employee may have a broader set of responsibilities in the workplace, even as compared to others in the same industry. As such, a skilled plaintiff’s attorney will work to gather the facts necessary to link the harm-causing behaviors of the employee to their expected work responsibilities.

One common work activity that results in potential vicarious liability claims is that of on-the-job driving. Employers who request that employees make work-related trips (whether using a personal or work vehicle) during the workday are liable for the harm caused by their employee while engaging in such activity. It should be noted, however, that the “going and coming” rule exempts employers from liability for their employees’ daily commute, as the commute is generally considered outside of the scope of one’s employment.

- According to the court in Moradi v. Marsh USA, Inc. (2013), the “going and coming” rule does not apply in situations where the employer requires that the employee bring their personal vehicle to use at work, and where the employee’s job duties entail significant use of said personal vehicle.

Negligent Supervision in The Employer-Employee Relationship

Negligent supervision is quite a bit different than vicarious liability, though they both share similar roots. While a personal injury claim brought under a theory of vicarious liability implicates the original personal injury cause of action, a claim brought under a theory of negligent supervision is brought as an entirely separate cause of action. In other words, vicarious liability directly imposes liability on the employer by making him liable for the negligent, reckless, and intentional actions of his employee, while negligent supervision indirectly imposes liability on the employer by making him liable for failing to properly supervise the negligent, reckless, and intentional actions of the employee. To a degree, an employer cannot be sued under a theory of negligent supervision for the spontaneous, unpredictable actions of his employee (provided that the unpredictable nature of the employee was not itself known).

Let’s consider an example that highlights this key difference between vicarious liability and negligent supervision.
Imagine that an employee is driving negligently while delivering Company products door-to-door. The employee hits a pedestrian with his vehicle and injures them. If the employee was delivering these products during work hours with the implied or express consent of the employer, then the pedestrian most likely will be able to sue the employer under a theory of vicarious liability.

Now, imagine that the same employee had a significant history of driving accidents that were known to the employer. If the employer gave his implied or express consent to the employee to drive during work hours and deliver the Company’s products, then the employer may be found liable under a theory of negligent supervision (for negligent hiring or negligent supervision) of the employee. The employer should not have allowed the employee to drive during work hours for Company work if the employer was aware of the employee’s significant negative driving history. Importantly, the plaintiff-victim in this example would likely be able to file a vicarious liability cause of action against the employer as well, thus improving their odds of success in the ensuing litigation.

There Are Three Types of Negligent Supervision, as Follows.

Negligent Hiring

An employer can be found liable for negligently hiring an employee. Basically, the employer must be aware of the employee’s incompetence or must have failed to engage in a reasonable investigation to discover such incompetence before hiring the employee.

Negligent Retention

Negligent retention is quite similar to negligent hiring, except that the employer becomes aware of the employee’s incompetence after hiring (but even after discovering the employee’s incompetence, does not fire the employee). Alternatively, the employer can get around the negligent hiring issue by training the employee out of incompetence.

Negligent Supervision

This is the standard circumstance. Essentially, if an employee presents a potential danger to others (not necessarily a physical danger – the employee may present a danger of fraud or some other civil wrong), and the employer is aware of this predisposition to danger, then the employer must effectively supervise the employee to ensure that the employee does not endanger others. If the employer does not institute reasonable policies, training, or management such that these risks are mitigated, then the employer may be found liable for negligently supervising the employee.

What if the employer remains blissfully unaware of his employees’ flaws – can an employer simply remain ignorant as to his employees’ flaws and backgrounds and thereby avoid potential negligent supervision liability? No, an employer cannot shield himself by willful ignorance. In California, employers are saddled with a duty to conduct reasonable investigations into an employee’s background (which includes their criminal history, related work history, work capabilities, etc.). The law does limit how far an investigation has to go, however. For example, an employer in California does not have to conduct an investigation into the juvenile delinquency records of an employee.