While on the job, an employee does something to harm another person—such as gets in a car accident, causes some sort of accident, or even does something intentional such as hitting someone—usually, there are multiple theories of recovery for this type of situation. The good thing for those injured is that they most certainly can proceed with a claim against the employee, but also likely can proceed against the employer as well.
There are two typical theories to establish employer liability for the actions of an employee: negligent supervision and a doctrine called respondeat superior.
To properly establish a claim under respondeat superior, a plaintiff must prove four things to successfully hold the employer liable for an employee’s actions: (1) the existence of an employer-employee relationship, (2) the employer-employee relationship was existing at the time, date, and place and under the circumstances which the plaintiff has alleged, (2) reliance by the plaintiff on acts or omissions by the employee, and (4) the employee is acting within the scope of employment or scope of agency. Typically, the fourth prong is the hardest to establish because an employer usually will argue an employee’s actions were outside the scope of employment. The test to determine if the respondeat superior doctrine applies to a tort is whether the person sought to be charged as master had the right or power to control and direct the physical conduct of the other in the performance of the act. An employer must also have what is called the “right of control” over their employee. The right to control refers to the ability of the employer to direct the conduct and actions of their employee.
The doctrine of respondeat superior can sometimes be a hard burden to shoulder when proving a case. There may be some gray area whether or not the employee’s actions were in the scope of employment, especially when the employee commits an intentional tort such as assault or battery. However, all is not lost. Instead, a plaintiff can proceed on a claim of negligent supervision.
While the doctrine of respondeat superior requires a plaintiff prove four things, to succeed on a claim for negligent supervision a plaintiff must only prove three. In a claim of negligent supervision against an employer for the acts of an employee, the plaintiff must prove: (1) the employer’s duty to supervise the employee, (2) the employer breached that duty, and (3) the breach of that duty by the employer caused the plaintiff’s damages.
The best example of the two separate theories at work would be when an employee flagrantly breaches a company policy, such as carries a weapon into work and then uses that weapon against a customer all while there is a company policy clearly stating an employee is not to carry a weapon. Given the policy and the breach of that policy, the employer likely will be able to establish the employee’s actions were clearly outside the scope of employment. Nonetheless, given an employer has a duty to enforce company policies and such a flagrant violation should not have gone unnoticed, the customer likely can succeed on a claim against the employer for negligent supervision. The employer has a duty to enforce their company policies, especially when those policies are to prevent injuries to other people.
One of the most important things to recognize after a situation involving an employer-employee relationship is that a highly skilled and knowledgeable attorney is needed in order to make sure they know the distinction between the two claims. While one claim may seem obvious to proceed on, it may fail just because slight factual distinctions with the case. By having an attorney that knows the full extent of the law, a plaintiff can insure that their claim will not fall through the cracks of the law.