vicarious-liability-1

Picture this: You’ve just been in a vehicle accident, and you or one of the passengers with you has been hurt, and your car is totaled. What will your next step be? Most people choose to sue the driver of the vehicle that hit them since it appears to be the most straightforward choice. But, did you know that this may not be the only choice or even the best choice?

Your goal is to maximize your recovery by way of settlement or verdict, and sometimes the person who caused the collision might have no assets or insurance. So who else should you sue?

One of the most popular targets you can sue for the negligence of a driver is the owner of the vehicle that caused the car accident. There are several legal grounds for which the owner of a vehicle may be liable for the negligence of the driver, even if they weren’t present during the crash. Which theory of liability you choose will depend on the facts and circumstances of how the driver came into possession of the vehicle.

Permissive Use Doctrine

By law, the owner of a vehicle will be held vicariously liable for the car accident caused by the negligence of the person driving the vehicle if the vehicle was being driven with the owner’s express or implied consent. This is actually codified by statute in California Vehicle Code § 17150 which specifically says:

“Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”

This form of vicarious or “strict liability” arises out of the theory that an owner who permits another to use his vehicle should be held responsible even if he was not negligent for driving or even negligent for giving another person permission to use his vehicle.  Burgess v. Cahill , 26 Cal.2d 320. This essentially treats the driver of the vehicle and the owner of the vehicle as one person, as long as you can show that the owner of the vehicle gave his express or implied permission for the driver to use the vehicle. More importantly, you don’t need to prove that the owner was negligent in giving that permission.

For example: Let’s suppose a person owns a vehicle and they let their friend, wife, cousin, employee, or whoever use the vehicle. Let’s also suppose that the person who owns the vehicle is an extremely safe driver with no tickets, no prior accidents, and a long history of perfect driving. If you can prove the owner gave permission, the owner will be automatically responsible for the car accident. This is extremely important because, sometimes, the driver may not have any assets or personal insurance that can compensate you for your injuries. Now you can bring a claim against the owner.

However, there are downsides of the “permissive use doctrine.” If you sue the owner under the “permissive use” theory of liability under Vehicle Code § 17150, you will be limited to recovering a maximum of $15,000.00 per person and $30,000.00 total for all persons injured in the accident. See Vehicle Code § 17151.

Obviously, this is extremely low and might not be enough to cover you for the full extent of your injuries. However, to the extent the owner has insurance that exceeds these limits and covers “permissive use” to other drivers, you can recover the full policy limits against the driver.

Injuries Caused by Thieves

Obviously, a thief does not have “permissive use” of the owner’s vehicle if the vehicle was stolen. California courts won’t even allow you to try and imply permission by owner’s failure to properly secure the vehicle from theft or even carelessly leaving the keys in the car. See Archer v. Sybert, 167 Cal.App. 722.

However, a vehicle owner may be held negligent and therefore liable under the “special circumstances” doctrine. This creates a duty that people may be held liable if they acted unreasonable and should have foreseen the risks arising from their conduct. But this theory is extremely difficult to succeed and some court’s have previously held that even leaving your keys in the ignition may not, by itself, be enough to succeed against the owner under the “special circumstances” doctrine.

For example, in May v. Nine Plus Prop, 143 Cal.App.4th 221, the court did not find an auto body shop negligent for leaving keys in ignitions because none of the additional factors were present, such as “(1) the vehicle was left in a neighborhood which was frequented by persons who had little respect for the law and the rights of others; (2) the neighborhood was heavily populated by drunks and near drunks; (3) the vehicle was intended to be left there for a relatively long period of time — from midafternoon to the following morning — and, of particular importance, it was intended that it would be left for the entire night; and (4) the vehicle was a partially loaded 2-ton truck, the safe and proper operation of which was not a matter of common experience, and which was capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled.”

In short, suing under this doctrine will be very fact intensive and specific, but may be a theory worth exploring.

Our reputation speaks for itself. Contact us today!

Click Now for a Free Consultation
Call Now for a Free Consultation

Negligent Entrustment

Under this theory, an owner of a vehicle may be “negligent” for entrusting his vehicle to someone he knew or should have known was an unfit, unsafe, or incompetent driver.

In Flores. v. Enterprise Rent-A-Car Company, 188 Cal.App.4th 1055, the court put it succinctly by stating that “one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver’s disqualification, incompetency, inexperience or recklessness ….”

Under this theory, you would need to prove four distinct elements to hold the owner responsible for the injuries arising from a car accident:

  1. That the driver was negligent in operating the vehicle;
  2. That the driver had permission to use the vehicle from the owner;
  3. That the owner knew, or should have known, that the driver was incompetent or unfit to drive the vehicle;
  4. The driver’s incompetence or unfitness was a substantial factor in causing harm.

Here, while permission is still necessary, similar to the “permissive use doctrine”, if you can prove the permission was negligent because the driver was unfit, you are no longer limited to the $15,000.00/$30,000.00 limits of the permissive use doctrine and Vehicle Code § 17151.

Unlike the permissive use doctrine which holds the owner strictly liable, the negligent entrustment theory is charged with direct negligence for providing the vehicle to someone who was an unsafe driver. Therefore, the most important evidentiary question to hold the owner liable for the car accident is did the owner know or should have known that the driver he was allowing to drive was an unfit and unsafe driver.

If the owner grants permission to an unlicensed driver, or a young driver with no experience, or someone they knew would create an unreasonable risk of harm to others, you may succeed on this theory.

Negligently Maintained Vehicle

Similar to the negligent entrustment theory, a vehicle owner may be personally responsible if they negligently maintained their vehicle. The law imposes a strict nondelegable duty that vehicle owners maintain their brakes and component braking systems in good condition and working order. Vehicle Code § 26453.

Therefore, if the driver of a vehicle in a car accident claims their brakes failed, the owner will be strictly liable for injuries caused from the defective brakes. This means that even if the owner reasonably believed his breaks were properly working or was told by his mechanics that the braking system was in good order, the owner may still be liable.

Click now for a free consultation
Call Now for a Free Consultation

Employer Liability for Negligence of Employee

This theory is by far the most common and most successful form of holding another person responsible for an auto collision caused by the negligence of another. That is because an employer will be vicariously liable for the negligence of their employees if the car accident occurred while the employee was acting within the course and scope of his employment.

This is another form of strict liability, which means even if the employer was exercising due care in hiring the driver and maintaining their vehicle, they will still be at fault if the accident occurred while the employee was driving for his work. However, there are specific elements you must prove.

First, you must prove that the driver was an “employee” of the defendant. Simply acting as an independent contractor will not hold the defendant liable for the negligence of the driver. So determining if the person is an employee is key.

While it is sometimes very simple, like a UPS or Amazon driver are obviously employees of their respective companies, many other companies consider their drivers as independent contractors. Think of ride-share companies that do not consider their driver’s as employees, but independent contractors. Many trucking companies use similar tactics and consider their drivers as independent contractors.

The question of who is an employee versus independent contractor is extremely facts intensive and can be very complicated. But one of the most important facts is Right of Control over the actions of the person. If the defendant set detailed instructions and maintained control over the manner and means in which the person is to conduct their work, you are much more likely to find an employment relationship. The less control the defendant has, the less likely the person will be found to be an employee.

For example, the average homeowner does not provide detained instructions or control the manner in which a plumber is going to fix their bathroom. Therefore, if the homeowner will likely not be responsible for the negligence of the plumber they hired for the day. On the other hand, Roto-Rooter provides strict instructions to their plumbers concerning where they will go, how they will invoice, what tools they have, and when they will work. Therefore, Roto-Rooter is more likely to be found responsible for the negligence of one of the plumbers they control.

The Employment Development Department of California maintains an Employment Determination Guide that might help you determine if someone is an employee or independent contractor. These factors include:

  1. Is the person instructed or supervised while working;
  2. Can the person quit or be fired at any time;
  3. Is the person engaging in work that the business regularly engages in;
  4. Does the person have a separate established business;
  5. Does the person make any business decisions which affect ability to make money;
  6. Does the person have any investment in the company;
  7. Does the defendant have any other people who do the same type of work;
  8. Did the defendant provide the equipment and tools to perform work;
  9. Is the work being performed skilled or unskilled;
  10. Did the defendant train the person to do the work;
  11. Is the person provided a set salary versus a per-job fee;
  12. Does the person regularly perform the same or similar work for the Defendant;
  13. Does the person believe they are an employee for the Defendant.

Kirakosian Law Can Help You Sue the Right Parties

Finding all the necessary defendants is not only difficult to do, it requires a considerable degree of practice. Attempting to do so without an experienced personal injury lawyer is simply not a good idea.

If you or someone you love has suffered harm or injuries because of someone else’s intentional or negligent actions, contact Kirakosian Law to discuss your legal options and to help you calculate and argue for the maximum amount of damages.