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09/04/14 It's the Law: Employer Not Always Liable for Damage by Employee

It's The Law

Employer Not Always Liable for Damage by Employee

(09/04/14)

Question:

One of my friends was injured by an employee of a major company. His injuries are significant. My friend's attorney said most of the time the employer is liable for damages caused by an employee. But, he said in this case, it could be difficult. Can you explain?

Answer:

Employer liability for acts of an employee is based on the doctrine of respondeat superior. Where an employer has authority to supervise and control the actions of employees, the employer has a duty to third parties to control and supervise the employees. The employer's liability is not unlimited. It only attaches to action of employees committed within the scope or course of employment. The scope and course of employment is often a contested issue in these cases.

In determining whether the employee was acting within scope of employment, the court is asked to determine if the conduct of the employee was part of the employee's required performance. The court also determines if the conduct occurred during the time and place of employment and if any part of the conduct involved service to the employer.

Determining whether the employee's action was within scope of employment is often easy. An employee erecting a dangerous display, which collapses and injures a customer, is clearly within scope of employment. Similarly, a truck driver delivering an employer's product is within the scope of employment when he negligently causes a motor vehicle accident.

Other circumstances are generally excluded. An employee travelling to or from work is not generally acting within the scope of employment, even when the car is provided by the employer as a part of employment. But, if the employee was running an errand for the employer while going to or returning home from work, the employer may be vicariously liable. Similarly, the employee is not acting within the scope of employment if the employee "steps away" or abandons the employer's business at time of injury to a third party.

A good example of "stepping away" is the case of Johnson v. Gulf Life Insurance Company. In Johnson, after leaving a client, the employee took friends to a lounge for solely social purposes. He had no plans to conduct business. He ran into a bicycle rider and the rider sued the employer. The employer was not liable when because the employee was not within the scope of his employment at time of the accident. Purpose here could be protecting Publix.

You would think that when an employee physically assaults a customer, such action is not within the scope of employment (other than a policeman or security guard). But, that is not necessarily the case. In the Trabulsy v. Publix Supermarket, a shopper left his grocery cart unattended in Publix. A Publix employee noticed the cart and assumed it had been abandoned. When the shopper found the employee re-shelving items from the cart, the shopper and the employee got into a fight. The employee shoved the shopper to the floor.

Publix argued that the employee was acting for purely personal reasons. The trial judge agreed with Publix and the injured shopper appealed. The appellate court explained that it is the purpose of an employee's act, rather than the method of performance, that determines scope of employment.

Publix argued that the employee's action was purely to defend himself and outside the scope of employment. The appellate court explained that an employer has an interest in protecting its employees from attack, at least to the same extent has it protects its merchandise. Courts have consistently held that battery by an employee in protecting the employer's property is within the scope of employment. The court explained that the employee's motivation in this case was a question of fact for the jury.

The court then explained there was evidence that could support the conclusion the employee did not act in self-defense but instead overreacted to the shopper's complaint. If the jury accepted that version of the facts, it could still conclude the employee's loss of control was motivated by his purpose to serve Publix. The court cited a number of cases, including one where the court ruled it a question of fact for the jury to determine if a building manager was acting within the scope of employment when he shot two tenants.

Publix also argued that its employee policies included a policy against fisticuffs and that conclusively negated the shopper's claim against Publix. The court explained that the issue would not be determined by whether the employee was strictly acting within the scope of policies and employment. If the employee was acting within the apparent scope of employment, authorization of the conduct or even forbidding the conduct by the employer is immaterial.

The reason injured people want to add the employer to their lawsuit is the employer usually has more money than the employee. That means the injured party's attorney will strain to make the employer a viable defendant. The facts of each case will determine the outcome, but it sounds like your friend may have a case where his attorney thinks the employee's actions were outside the scope of employment under Florida case law.

By: William G. Morris, Esquire.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island EagleOther articles of interest can be viewed at our website, www.wgmorrislaw.com

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