Holding an Employer Liable For Injuries Caused By Employees

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

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

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.

A Comprehensive Guide to Medical Malpractice Lawsuits in California

Hospitals and doctors are often concerned about the size of medical malpractice awards. However, these awards have to be large in order to cover the damage a negligent doctor can inflict. A negligent doctor can inflict serious injuries on a patient that can dwarf most other types of injuries.

In 1975 though, California passed MICRA, a series of laws which make it difficult for patients to collect medical malpractice awards. However, MICRA creates procedural hoops which make the process more difficult and time consuming. These hoops include a narrower statute of limitations, a ninety day notice, the possibility of arbitration, and award caps.

This blog will discuss each hoop so that patients can collect malpractice payments which rightfully belong to them.

Statute of Limitations

As the name suggests, statutes of limitations place a timeframe on when a plaintiff can file a lawsuit. For example, victims of automobile accidents have a statute of limitation of two years. The victim has two years to sue or the victim loses the right to file a lawsuit regarding that accident.

Statutes of limitations are a common occurrence in personal injury, so medical malpractice claims have one as well. The statute of limitations for medical malpractice is three years after the injury, or one year after the plaintiff discovered or should have, through reasonable diligence, discovered the injury (CCP 340.5). The first half of this statute sounds reasonable – three years to file a claim is more than the two years given for automobile accidents.

However, the second half of the statute of limitations can prevent many plaintiffs from bringing their claims. The statute requires that medical malpractice victims bring their claim within one year after the victim discovers his or her injury or one year after the victim should have discovered his or her injury. This part of the statute of limitations is triggered when a victim suspects that his or her doctor was negligent (Knowles v. Superior Court).

This can very problematic for malpractice victims or their families. A patient may require many procedures performed by many doctors. Although victims or their families may suspect negligence happened sometime during the medical procedures, they need to bring lawsuits against specific parties. One year is often not enough time to identify which healthcare provider was careless, but courts still require that the claim be brought before that one year period is over. This will either result in the case being dismissed entirely (Jolly v. Eli Lilly) or in some defendants getting away without consequence (Knowles v. Superior Court).

1.     Statute of Limitations – Exceptions to The Three Year Rule

The statute of limitations, CCP 340.5, includes a few exceptions. If the defendant was fraudulent, tried to cover up the malpractice, or left a “foreign object” inside the plaintiff that has no medical effect, the three year limit does not trigger. Instead, CCP 340.5’s statute of limitations will be replaced by a more appropriate rule (Young v. Haines). For example, if a surgeon leaves a sponge inside the victim, the three year rule does not apply. Instead, the statute of limitations will be one year upon the victim’s reasonable discovery of the sponge inside her body.

Note that these exceptions only apply to the “three years after injury” rule. These exceptions do not apply to the one year rule regarding the victim’s suspicion of malpractice (Sanchez v. South Hoover Hospital).

2.     Statute of Limitations – Children

CCP 340.5 is far more lenient towards children. For children between the ages of six and eighteen, the statute of limitations is three years. The nonsense about “one year after discovery of injury or could have discovered injury” does not apply to children. For children under the age of six, the statute of limitations is extended until the child is eighteen.

Ninety Day Notice

The ninety day notice requirement is a procedural obstacle that MICRA specifically created to slow down medical malpractice suits. The ninety day notice requires the malpractice victim to send a written letter notifying the defendants that the victim intends to sue them for medical malpractice ninety days before the actual lawsuit is filed (CCP 364). More specifically, the notice must inform the defendants the legal basis of the claim, the type of injuries alleged, and the nature of the injuries alleged (CCP 364b). The notice can be sent through first class mail or fax (CCP 364).

The notice is designed to give healthcare providers an advantage by giving them extra time to prepare. However, the ninety day notice can also work to the malpractice victim’s advantage by extending the statute of limitations. If the notice is sent during the statute of limitations period, the statute will be extended.

For example, if the notice is served on the last day of the three year period, the statute of limitations will become three years and ninety days. Likewise, if the notice is served during the one year period upon the victim’s discovery of injury, the statute of limitations becomes one year and ninety days. The ninety day notice can extend the statute of limitations regardless of whether the applicable statute of limitations is one or three years (Russell v. Stanford University Hospital).


When plaintiffs sue in court, they often expect a jury trial. Alternative dispute resolutions, such as arbitration, often come as a surprise. Let’s go over some terms first though. “Alternative dispute resolutions” are methods of settling a case other than the use of a trial. They can include settlements or arbitration. Judges love alternative dispute resolutions because it means less work for them.

“Arbitration” is an alternative dispute resolution where the parties agree to the use of a third party to review the evidence and render a binding decision. The arbitrator can be one person or a panel of persons. Although arbitration might sound like trial by judge, arbitrators are not judges. The most significant difference is that arbitrators are selected by the parties whereas judges are not. This doesn’t sound too bad until one realizes that arbitrators are often chosen by the party with the deeper pockets.

Unfortunately for medical malpractice victims, MICRA allowed healthcare providers to arbitrate malpractice suits (CCP 1295). To be sure, both parties must agree to arbitration. “…Arbitration is binding only insofar as both parties consent in some fashion to the waiver of the right to a jury trial” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC). However, most patients will, at most, skim the agreements healthcare providers give them. Many patients will not realize that their case is subject to arbitration until they try to sue the healthcare provider.

Courts have generally upheld arbitration agreements, despite the fact that the healthcare providers often control who the arbitrators are. According to CCP 1295, arbitration clauses must at least, in “10 point bold red type” font, read: “NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.” Some attorneys have speculated that arbitration is actually preferable for plaintiffs.

Damage Awards

The most infamous part of MICRA is its modification of medical malpractice damage awards. Although the damage cap is MICRA’s most well known provision, MICRA also changes the lump-sum rule and the collateral source rule. These rules might sound like a foreign language to laypersons, but they can be just as important to patients as the damage cap.

1.     Damage Cap

Non-economic damage awards against healthcare providers for professional malpractice are capped at $250,000 (CCP 3333.2). “Non-economic damage” includes pain and suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damage. On the other hand, “economic damages,” such as lost wages, are not controlled by the cap (Francies v. Kapla).

It is also important to point out that the cap only applies to “healthcare providers for professional malpractice.” Professional malpractice by a healthcare provider is “a negligent act or omission to act by a health care provider in the rendering of professional services…provided that the act is within the scope of services for which the provider is licensed…” (CCP 3333.2(c) (2)).

Any case outside that definition is not covered by MICRA’s damage cap. Intentional battery, which are medical procedures without the patient’s consent, are not covered (Perry v. Shaw). Reckless neglect, such as neglect which constitutes abuse under the Elder Abuse and Dependent Adults Civil Protection Act, are not covered (Delaney v. Baker). Any persons who are not healthcare providers are not covered. The term “healthcare providers” is quite large though, and it includes unlicensed yet registered social workers (Prince v. Sutter Health Central).

2.     Periodic Payments

Most damages awards for negligence are given in single lump sums, which is the entire award given all at once at the end of trial. The lump sum rule has drawn criticism because accident victims are often under or overcompensated (Deocampo v. Ahn). It is difficult for courts to predict how much an accident victim might need in the future.

The lump sum rule is optional in medical malpractice cases. Parties are allowed to use periodic payments instead if the damage award is over $50,000 in future damages (CCP 667.7). For instance, defendants can pay a damage award of $9,312,335 in equal monthly installments for 336 months, the patient’s life expectancy, instead of all at once (Deocampo v. Ahn). The $9,312,335 award could exceed the $250,000 cap because the award was for future medical damages. The patient in Deocampo suffered from heart trouble which would likely result in future operations.

The option for periodic payments can be triggered by either party. Why would the patient want to be paid in periodic payments? As mentioned above, lump sum payments sometimes under compensate the patient. If the patient is paid $80,000 today but the patient actually needs $100,000 in the future, the patient would still need $20,000. With periodic payments, under compensation is never a problem.

However, the main risk with periodic payments is that the defendant might not always be around to pay the patient. Fortunately, the statute addresses this issue. If the defendant is not adequately insured, the court can order the defendant “to post security adequate to assure full payment” (CCP 667.7). The security is collateral property that the patient can collect and sell in the event that the defendant is unable to pay the damage award.

Suppose a therapist is found liable for a $70,000 award and he or she is not insured. The therapist can offer a summer beach house as collateral in the event that he or she is unable to make full payments. The beach house would be security for the patient if the therapist went into bankruptcy.

Finally, periodic payments favor the patient even if the patient passes away. If the patient passes away before the defendant makes full payment, the remainder of the payment is given to people the patient owes a duty of support. People the patient owes a duty of support are typically children or spouses. Of course, this provision only counts the patient’s lost earnings, so defendants can go back to court to modify the award. However, defendants cannot extinguish the obligation to pay the patient’s dependents (CCP 667.7(c)). 

3.     Collateral Source Rule

In most negligence cases, parties are not allowed to introduce evidence regarding liability insurance that the other party carries. For example, if there is a case involving a bus colliding with a car, the company which owns the bus cannot offer evidence that the car owner had medical or automobile insurance. “The Supreme Court of California has long adhered to the doctrine that if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor” (Helfend v. Southern Cal. Rapid Transit Dist). In other words, the injured party can be paid twice: one payment from his or her insurance and a second payment by the jury.

In medical malpractice, this is far less likely to happen. MICRA abolished the collateral source rule in claims against healthcare providers for professional negligence (CCP 3333.1). This means that in medical malpractice, defendants can show the jury that the victim has social security, worker’s compensation, health/sickness/disability/accident insurance, or any other type of contract or agreement which would reimburse the victim (CCP 3333.1). The jury then has the discretion to lower the amount awarded. By abolishing the collateral source rule, MICRA shifts the weight of the patient’s injury from the defendant to the patient.


To be prepared, patients should have copies of the following. First, you should collect your medical record(s). Second, you also need any agreements or contracts made with the defendant(s). Third, you should also get copies of any social security, worker’s compensation, or other accident insurance you carry. If you do not have these documents on hand though, it is still possible to find them after the case has been filed.  

While MICRA has made filing for medical malpractice more difficult, it does leave a few doors open so that malpractice victims can still get payment for their injuries. California voters might have supported negligent doctors at the polls, but patients are still the ones who need protection.