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:
- Is the person instructed or supervised while working;
- Can the person quit or be fired at any time;
- Is the person engaging in work that the business regularly engages in;
- Does the person have a separate established business;
- Does the person make any business decisions which affect ability to make money;
- Does the person have any investment in the company;
- Does the defendant have any other people who do the same type of work;
- Did the defendant provide the equipment and tools to perform work;
- Is the work being performed skilled or unskilled;
- Did the defendant train the person to do the work;
- Is the person provided a set salary versus a per-job fee;
- Does the person regularly perform the same or similar work for the Defendant;
- 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.