If you are driving along the road and another auto that is driven by an employee of a company causes an accident, what is your recourse?
In the above scenario, you will want to know a few things immediately:
Although a case can be brought against the driver/employee, the injured party’s lawyer wants to know about the employment relationship of the at-fault party and the amount of insurance coverage. I can state with reasonable certainty that in these situations you are almost always dealing with a large policy written to the employer. It is very rare that you will have to proceed against the employee only. These situations almost always result in a claim against the employer (and thus typically a larger insurance policy), as the employee is almost always in the course and scope of his/her employment.
Given what we usually see, the most compensable third party claims are those where “vicarious liability” plays a factor in the recovery. In the realm of modern litigation, vicarious liability, also referred to as respondeat superior, typically occurs where an employee has made a mistake which has caused the plaintiff’s injury and the plaintiff is seeking to hold accountable the company or business that is employing this particular employee.
The plaintiff will need to show that the employee was acting within the “scope of his employment” when the wrongdoing that led to the plaintiff’s injury occurred. Basically, this means that plaintiff must show that the employee was actually working when his or her negligent conduct caused the plaintiff’s injury. The Massachusetts Supreme Judicial Court has focused on three ideas when assessing whether an employee’s conduct falls within the scope of his or her employment: 1) when the behavior of the employee is consistent with the work for which he/she was hired, 2) the negligence of the employee takes place during the hours of employment, and 3) that the negligence actions of the employee were motivated, at least in part, by a desire to serve the employer. See Lev v. Beverly enterprises-Massachusetts, Inc., 457 Mass. 234, 238 (2010).
The above criteria may seem difficult to prove. However, proving them is seldom difficult. In more than thirty years of practice, I have seen very few cases where the employer denies the employer-employee relationship at the time of the accident. Therefore, we almost always proceed against the employer and proceed against a large insurance policy.
In those few instances where the employment relationship is contested, how do courts determine when if the vicarious liability doctrine is appropriate to the facts? In Massachusetts, generally the courts have focused on the concept of control, specifically the amount of control that an employer has over the actions of an employee, as one part of the test for determining vicarious liability. Control– also frequently discussed as a “special relationship” between the employer and employee– is the concept that an employer will be liable for an employee’s acts when the employer’s control over the employment facilitates the harm done to a third party. This concept of control can have many different applications, such as the fact that the employer controlled the amount of time that the employee worked when the accident occurred; or that the employer controlled the location where the employee was working when the accident occurred; or, the most likely scenario, that the employer exercised control by giving the employee a mission or objective that the employee was attempting to complete when the accident occurred. See Silvia v. Woodhouse, 356 Mass. 119, 124 (1969).
When the tortfeasor, the negligent party, is acting as an employee, I know that I have an action against the employer and not just, if at all, against the employee.
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