Picture this: A pizza delivery driver is running behind on schedule. In order to meet his goal, the delivery driver floors the gas pedal when a signal light is about to turn red. Although the driver gets lucky a few times, eventually his luck runs out. He rams a motorcycle as the next signal light changes.
Who should be held liable for the motorcyclist’s injuries in this situation? The pizza delivery driver is the individual most responsible for the motorcyclist’s injuries, but the delivery driver is unlikely to have the money necessary to compensate for the medical bills, let alone the full damage award. Many personal injury attorneys will focus on the employer in situations like this in order to ensure that their client receives the most compensation possible under the law.
Employers can be held accountable for the injuries their employees inflict on others through one of two different theories: direct liability or vicarious liability.
Direct liability, as the name suggests, is when the employer is directly responsible for the injury. This sounds odd, given that the employer is only responsible through the employee’s involvement. However, an employer can be directly liable when the “employer violated a duty of care it owed to the injured party and this negligence was proximate cause of resulting injury” (De Villers v. County of San Diego). From this case, we can identify three elements of direct liability. First, the employer must owe a duty of care to the injured party. Second, the employer must be negligent. Finally, the employer’s negligence must be the cause of the victim’s injuries.
The first requirement in this theory of liability is the duty between the employer and the injured party. The employer must have a legal obligation to the injured party to exercise a certain amount of care before the employer can be held directly liable. If there is no duty, the case against the employer cannot move forward.
For instance, in De Villers v. County of San Diego, the victim’s family sued the county of San Diego for negligently hiring a drug addicted employee and for allowing that employee to steal enough toxins to poison her husband, the victim. Although the facts suggested the county had been negligent, the court found that the defendant did not owe any duty to the husband’s family. The court ruled that a plaintiff who sues a public employer needs to show that the duty of care owed came from a statute and not just common notions of duty.
Direct liability typically involves negligent hiring, or failure to take reasonable care when hiring someone. “Under California law, an employer may be held directly liable for the behavior of an unfit employee where the employer was negligent in the hiring, training, supervising, or retaining of that employee” (Keum v. Virgin America Inc). In the pizza delivery example, the company could be directly liable if the company knew or could have known that the delivery driver had been responsible for numerous traffic accidents in the past, but retained him anyway.
Vicarious liability is the process of holding a person accountable for the actions of another person, such as the employer-employee relationship (California Civil Code 2338). Vicarious liability involves the employee acting on behalf of the employer. “It is well established that traditional vicarious liability rules ordinary make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment (Meyer v. Holley). Since the employer is expected to be in control of the employee, the employer is at fault when the employee injures another person while the employee is working for the employer.
There are two elements required to hold an employer responsible for the actions of an employee through vicarious liability. First, the employer must have direction or control over the employee’s work. This element eliminates independent contractors from vicarious liability. The employer must be in control of both the methods as well as the goals of business (Valles v. Albert Einstein Medical Center).
The second element, the scope of employment, is more often contested. This element asks whether the employee was “on the job” when the victim was injured. If the employee was working on behalf of the employer, the employer should be responsible for the victim’s injuries because the employer could predict whether the accident would have occurred. One way to determine whether an employee acted within the scope of employment is by deciding whether the employee was on a detour or a frolic. A detour is a minor departure from duties while a frolic is a major departure from duties.
If the pizza delivery driver hit the motorcyclist while driving to a gas station, the delivery driver would be on a detour because gas is necessary for the driver to fulfill complete his job. If the delivery driver had hit the motorcycle on the way to his girlfriend’s house, the delivery driver would be on a frolic.
An employee on a detour is more likely to be in the scope of employment than an employee on a frolic. An employee on a frolic is typically on the frolic for personal reasons unrelated to business. An employee on a detour, however, is still a representative of the employer. For example, in Vasey v. Surrey Free Inns, a manager assaulted a guest after the guest failed to leave the inn. Although the manager was on a detour from typical responsibilities, assaulting a guest was not part of the manager’s job, the manager was still representing the inn during the assault and thus the inn was vicariously liable.
Although the distinction between frolic and detour appears to be clear, technology has made the line fuzzy. In Miller v. American Greetings Corp, the manager of the company was involved in an auto accident on his way to meeting with a probate attorney. Prior to the accident, the manager was on his cell phone with subordinates. However, the phone call was made a few minutes before the crash and it was unclear from the record whether the manger was still on the phone when the accident occurred. Although the courts eventually ruled that the manger was on a frolic, the case could have gone either way.
Direct liability and vicarious liability are the two legal theories personal injury attorneys use to hold an employer liable for victim’s injuries. Direct liability is focused on employer negligence in hiring while vicarious liability is focused on the employee as a proxy for the employer. The two theories sometimes overlap, but they are two distinct theories.
The California Supreme Court made this clear in Diaz v. Caramo. The high Court ruled that if the employer admits to one theory, the employer cannot be liable for the other. Employers can only be accountable for one theory of liability because “employer’s liability cannot exceed that of the employee driver who allegedly caused the accident.” In other words, victims cannot collect more than the harm done to them by the employee.
If the employer is found liable though, the victim is more likely to be compensated for the harm done to them. Contact the Pivtorak Law Firm by calling (415) 484-3009, or click here to request a free, confidential consultation online.