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Dr. Nick Oberheiden

Aaron Wiley
Former State &
Federal Prosecutor

S. Amanda Marshall
Former U.S. Attorney

Lynette Byrd
Former Assistant
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When Can A Business Be Sued For Negligence Or Recklessness Of An Employee?

Categories: Criminal Law & Process


Effective Counsel For Your Business

Your employee, your liability? When it comes to torts, or what is commonly thought of as a personal injury case, corporations or partnerships are often the named defendants in lawsuits brought by a plaintiff who claims to have been injured and is looking for compensation.  In most cases, of course, any actual harm caused was done by a particular person.  If that person is an employee of your company, then the plaintiff is likely to seek recompense from your company for their injuries.  In general, a personal injury or tort claim against any defendant will only be successful if the plaintiff can show both that the defendant had a duty towards him or her, that the defendant breached or violated that duty, and that the plaintiff was injured because of the breach of duty.

In most cases, because you have the right to direct the actions of your employees, you will be found to be liable for any accidents that occur due to their negligence or recklessness.  In the same way that the company receives the benefits of the employee’s work, the company is likely to be responsible for any damages caused by that work.  And you can be sure that the plaintiff’s lawyer will name the company in their lawsuit, as the corporation is more likely to be able to pay a settlement or judgment than the employee of the business is.

The legal bases for holding the company accountable. There are two different theories under which companies can be and are sued for the actions of their employees.  First, actions taken in the “course and scope” of a person’s employment are attributable to their employer.  Because the employer directs and benefits from the work of the employee, the company will likely be held responsible and liable for any injuries caused by that employee while he or she is doing their job.  On the other hand, if the employee is on what courts refer to as a “detour” or “frolic,” the company is not liable for their employee’s actions even if he or she was technically on the job.

A couple of examples will illustrate the difference between actions taken in the scope and course of employment and those that are more likely to be ruled as a frolic or detour.  First, consider a delivery driver.  If he causes a car accident while out on a delivery for the company, that accident occurred while the driver was acting in the course and scope of his employment, and the company is likely to be held liable and have to pay damages for the accident.  On the other hand, imagine that after making a delivery, the driver decides to stop and visit his girlfriend and gets into an accident leaving her house and driving back to the store.  In this situation, the court is more likely to find that the driver was on a “detour” and not acting within the scope of his employment, because his job did not involve stopping for personal visits.  Next, consider a warehouse employee.  If that employee’s job involves driving a forklift, and he causes items to fall on another employee or a third party, the company is likely to have to pay for those injuries.  However, if the person’s job is to stack boxes, and not to drive the forklift, and he decides on his own to get on the forklift and drive it for fun, any damages caused by that decision are likely to be the result of a “frolic” and result in no liability for the employer.  Note that this result could differ if he was instructed to drive the forklift or if no steps were taken to prevent unauthorized forklift usage.

Another theory under which an employer can be held liable for the negligence or recklessness of its employees is negligent hiring, negligent supervision, or negligent retention.  In other words, the plaintiff’s lawyer will claim that the company or owner should have known that the employee was likely to cause an accident.  For example, if you hire an employee to be a driver, but do not check his driving record to learn that he has a suspended license or several previous moving violations, you might be sued for negligent hiring.  Likewise, if you do not warn your employees against playing on or using the forklifts without permission, do not take any steps to prevent them from doing so, and do not warn or discipline them for using them without permission, you might be accused of negligent supervision.  Finally, if you know that your delivery driver frequently stops off at his girlfriend’s house on the way back to work, or an employee has caused a previous accident with no repercussions, you could be sued for negligently retaining that person as an employee.  Note that it is possible to be sued for – and found liable for – negligent  hiring, negligent supervision, or negligent retention even if you are not liable under a theory that the person was acting within the course and scope of their employment.  This example is demonstrated by the driver who stops at his girlfriend’s house.  While doing so might be a detour or frolic, if you are aware of this habit and do not take steps to stop it, you could end up having to pay for the accident he causes.

Employees versus independent contractors. Note that this discussion is focused on employees, not independent contractors.  By definition, you are not responsible for the nature or methods by which an independent contractor does her work.  Therefore, if an independent contractor acts either negligently or recklessly, the company is not likely to be found to be liable under the “course and scope of employment” rule.  However, do not believe that your business cannot face a large monetary judgment due to the independent contractor’s actions.  If you negligently contracted with the independent contractor, the rules of negligent hiring and retention apply and the company could be responsible for the plaintiff’s injuries.

Defending your business. If one of your employees has harmed another person through negligence or recklessness, or if you have been sued for the actions of one of your employees, you need to take steps to protect your business as soon as possible.  You need to hire a civil defense lawyer with experience, knowledge, and the skills to fight back in court or negotiate a favorable settlement.  The attorneys at Oberheiden, P.C. have the years of practice and know-how to protect your business from unwarranted attacks by unscrupulous plaintiffs’ lawyers.  Call us today for a free and confidential consultation about the facts of your case.  Time is of the essence in litigation; if a lawsuit has already been filed, you may only have days to respond.  Call us today.

Call Our Driven Lawyers For A Free Consultation If An Employee Has Caused An Injury

If one of your employees has caused injury to another person, you should contact the skilled attorneys at Oberheiden, P.C. to see if you or your company could be civilly liable. Get a free and confidential consultation and benefit from talking to the former federal and former state prosecutors and experienced litigators of Oberheiden, P.C. to assess your case.

Oberheiden, P.C.
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Who Will Handle Your Case

When you hire us, you will not work with paralegals or junior lawyers. Each lawyer in our Healthcare Practice Group has handled at least one hundred (100) matters in the healthcare industry. So, when you call, you can expect a lawyer that immediately connects with your concerns and who brings in a wealth of experience and competence. For example, you need someone like Lynette S. Byrd, a former federal prosecutor in healthcare matters, who recently left the government and who is now sharing the valuable insights she gained as a healthcare prosecutor with our clients.

Dr. Nick Oberheiden

Dr. Nick

Lynette S. Byrd

Lynette S.