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Employer's Responsibility for the Acts of their Employees
Posted by: Stephen Leshner
March 19, 2009
Topic: PERSONAL INJURY LAW
A general rule of law is that an employer is responsible for the conduct of his or her employees, if the employee is acting within the course and scope of his or her employment. Lawyers use the Latin phrase, respondeat superior, to describe this principle. If someone is injured by an employee driving a company truck, the employer will be responsible for the damages sustained. However, employers sometimes defend these cases by claiming that their employee wasn't an employee at all, that instead, they were "independent contractors". So, many cases revolve around the issue of whether the responsible party was an "employee" or an "independent contractor" or something else. This means a seemingly simple case can become not simple at all, because if the responsible party is categorized as an independent contractor, there may be no insurance coverage for the injuries, even though the employer has insurance. The employer's insurance often only covers damages caused by their employees, not damages caused by independent contractors. The independent contractors sometimes do not have insurance coverage, leaving the injured party without recourse.
In an interesting case I recently settled, I represented a man who purchased an old car from a used car lot, and financed the car from the used car lot, at a rather high interest rate. After six months, he couldn't afford to pay the car loan anymore, so the used car lot and its finance company contracted with an auto repossession company to do a self-help repossession of the car. A self-help repossession is one where the agents find the car on the street, and without the owner's knowledge or consent, tow the car away.
In this case, the tow truck driver found the car in a parking lot at a bar. He hooked up the car to the tow truck. A waitress in the bar saw this happening, and told the owner of the car what was happening. The owner went outside, and hopped on the back of the tow truck, in between the back of his car (which was on the flat bed tow truck) and the cab of the tow truck. He told the tow truck driver he wanted to get some items out of his trunk before he towed the car away. Instead of letting him retrieve his items, the tow truck driver drove away, with the owner of the car on the back of the truck.
Witnesses saw the tow truck driver speeding up and slowing down, and yelling at the car owner to get off the truck. In the process of speeding up and slowing down, the towed car slammed into its owner, pinning him against the cab of the tow truck, breaking the femur in his leg, which is the largest bone in the body. A witness, who was working in his garage a few blocks away, heard the screams of pain of the car owner, and saw the tow truck driver yelling and pointing at the car owner, to get off the truck.
Finally, the tow truck driver stopped the tow truck. The police were called, who arrested the tow truck driver for aggravated assault. The car owner was taken to the hospital, where he underwent surgery, including the insertion of plates and screws, to repair his fractured femur. Curiously, the County Attorney's office decided not to prosecute the tow truck driver, who was released from jail, and disappeared. The auto repossession company claimed that the tow truck driver was not their employee and was instead, an independent contractor. They also claimed he was not authorized to drive the tow truck at the time, and somehow obtained the keys to the truck from their dispatcher under false pretenses. The owner of the auto repossession company called the manager of the used car lot and finance company, and told him to come and get their car, but let's not call this a repossession.
The injured car owner hired me to represent him. I sued the used car lot and the finance company, the auto repossession company and the tow truck driver. The used car lot and finance company claimed they were not responsible and blamed the auto repossession company and its driver. The auto repossession company claimed they were not responsible, and blamed the tow truck driver. The tow truck driver couldn't be located and had no insurance coverage. None of these entities would admit that they employed the tow truck driver or were responsible for his conduct.
However, the law in Arizona was favorable to my client. In certain situations, individuals and companies have a non-delegable duty. A non-delegable duty means that if you hire someone to do a certain act, you can't defend yourself by saying that you hired someone else to perform the act, so someone else is responsible, and you're not. Hiring someone to perform a self help auto repossession is one of the acts in which there is a non-delegable duty. If a breach of the peace occurs during a self help repossession, the used car lot and finance company can be held responsible.
After a flurry of legal motions on the issues of non-delegable duty and the responsibility of employers, employees and independent contractors, this case was settled for a confidential amount. Without this body of case law, my client's only recourse would have been against the uninsured and missing tow truck driver, and his injuries and substantial medical bills would have gone uncompensated and unreimbursed.
