Employers can be held legally responsible if their worker is negligent while working. This is called vicarious liability. Now that many employers provide cell phones to their workers, employers may face vicarious liability outside of the office. An employer needs to know their options for attempting to limit liability.
What Is Vicarious Liability?
Vicarious liability is the process of holding a person responsible for the actions of another individual. Often, the concept of vicarious liability applies to employer liability for the actions of their workers.
How Can an Injured Person Prove Vicarious Liability of an Employer?
Injured people that desire to hold employers responsible for the actions of their workers have to demonstrate three elements:
- The employee agreement required the employee to work under the direction and control of the employer.
- The employer had the inherent authority to control the worker.
- The worker’s actions are within the scope of employment.
The burden of proof rests on the individual desiring to hold an employer accountable. Thus, getting accurate records about the scope of employment is essential.
Are Employers Accountable for Unforeseeable Actions?
The rule of vicarious liability sometimes holds employers liable for their employees whose actions were unforeseen. These include:
- The employer had control over the employees during work hours: Because the employer had control over the actions of their workers, they should be held accountable.
- Employer benefits from the employee’s actions: The worker brings in profits for the employer. Thus, the employer should be accountable for any losses.
What Is Negligence?
Everyone has heard of a story where someone acted carelessly, someone was hurt, and a lawsuit followed to compensate the injured person. Negligence is the legal theory that authorizes injured individuals to recover for the carelessness of others. A person is negligent if they are careless given the situation’s circumstances.
How Do You Prove Negligence?
Negligence has four primary components that must be shown to recover for injuries. Those parts are duty, breach, causation, and damages. Even if those four elements are shown, and negligence is established, a defense might still mitigate how much a defending party must pay.
A duty is a responsibility one individual owes to another. In general, individuals going about their business owe a duty of ‘reasonable care.’ ‘Reasonable care’ is the care an ordinary and prudent individual would use in the same situation.
For instance, if a person is driving during a rainstorm, they would be exercising ‘reasonable care’ by going slower and having their headlights on to improve visibility. A person would not be exercising ‘reasonable care’ if they were driving forty miles per hour over the speed limit.
A breach happens when an individual’s care falls below the level required by their duty. The individual driving forty miles per hour in the above example breached their duty of reasonable care by driving so fast during a rainstorm.
The breach of duty must be the cause of injury. The legal test for causation is a bit more complicated than that, but the fundamental test is “but for one party’s actions, the injury would not have happened.”
In the above example, if the individual driving too quickly during a rainstorm didn’t have enough time to stop before hitting another car, they have breached their duty of reasonable care which then caused injury to the other vehicle.
In general, there has to be some harm that occurred. The type of injury can vary, from property damage to emotional stress to lost wages.
All of the above need to be present to determine that the other party was successfully negligent. If one of the above cannot be established, then negligence cannot be established.
Are There Any Defenses to Negligence?
There are a variety of defenses to an allegation of negligence. The most obvious is to dispute any negligence components (meaning duty, breach, causation, or damages).
Comparative and Contributory Negligence
Two related defenses are contributory and comparative negligence. One or the other will apply depending on state law, but the general idea is the same. Both defenses ask whether the individual injured is in some way liable for the injury they suffered.
In contributory negligence jurisdictions, any negligence on the injured individual is a total bar to recovery (meaning they get nothing). In a comparative negligence jurisdiction, the injured individual can still recover, but the recovery is reduced by how negligent they were.
Assumption of Risk
Assumption of Risk is a defense essentially saying the injured individual knew they were doing something intrinsically risky and chose to do it anyway. If this defense is successful, the defending party will not have to pay for damages.
When Can an Employer Face Liability?
Before the growth in technology, it was easier to determine when an employee was performing a task in their employment. This used to typically be confined to when an employee is in an office or meeting. Today, since technological devices are regularly supplied to workers, a task can be performed on behalf of an employer anywhere.
For instance, if an employee is out of the office and uses their cell phone to make a business call, they will usually be viewed as working. Nevertheless, sometimes an employee does not even need to be making a business-related call.
If an employer provides the phone itself, that employer may be held liable if an employee acts negligently while using the cell phone. An example of this is if an employee gets in a car accident because they were using their cell phone (or driving a company car). An employer can be sued and held responsible for the accident and damages that may have occurred to others.
How Can Employer Liability be Limited?
While it may be hard to argue against vicarious liability, an employer can put policies that could be used to say that the employer should not be held responsible for an employee’s actions. This could include the following rules:
- Outlawing all cell phone use while driving;
- The requirement that employees be “hands-free” (speakerphone, Bluetooth) if using cell phones while driving;
- Providing workers with the state’s cell phone regulations;
- Outlawing of personal calls on an employee-issued cell phone; and
- A requirement that workers sign a statement of indemnification if a cell-phone-based accident happens.
If these policies are implemented, an employer should distribute them to all workers and require a signature showing that they were obtained. An employer could use any cell phone-related policies to argue against vicarious liability. It could also be helpful to show a history of enforcing these policies.
When Should I Seek Legal Help?
If you are an employer who does not have any cell phone/technology use policies, you may want to contact an employment attorney to help you draft some. In addition, if you were hit by someone using a cell phone, you should contact a car accident attorney.
Suppose the driver was using a company cell phone. In that case, an attorney can advise you about whether the employee was acting during their employment at the time of the accident and if you should add their employer as a party to the lawsuit.