If you are injured by someone acting “within the scope of employment,” you may have a claim against both the employee and the employer. Under the doctrine “respondeat superior” (Latin for “let the master answer”), an employer is liable for a tort committed by an employee acting “within the scope of employment.” The doctrine is also known as “vicarious liability” because the employer is vicariously liable for the employee’s tort.
A tort is simply a civil wrong. For example, if you are injured in a car accident caused by a negligent driver, a tort has occurred. The driver is then called the tortfeasor.
The question of whether a driver was “on the job” or acting “within the scope of employment” is often a contentious issue of fact that is decided at trial by the jury. An employee is acting “within the scope of employment” if he or she is acting:
- within the general authority granted by the employer;
- in furtherance of the employer’s business; and
- for the accomplishment of an object for which he or she is employed.
A good example of an employee acting “within the scope of employment” is a deliveryman for a pizza restaurant driving on a delivery route. The deliveryman is acting under the general authority of the restaurant; in furtherance of the restaurant’s business – selling pizza; and for the accomplishment of an object for which the deliveryman is employed – to deliver pizzas.
An employer is generally not liable for accidents involving an employee traveling to and from work. But there is a presumption that an employee is acting “within the scope of employment” if the employer owns the vehicle the employee is driving. Another factor a court may consider is whether the employee was on a “frolic” or “detour” from his employment – such as running a personal errand.
Although an employee driving on the job is the most common example of the vicarious liability doctrine, it is not limited to car accidents. For example, a hospital may be found vicariously liable for a doctor committing medical malpractice inside its walls.
Typically, an intentional tort – such as an assault – is not “within the scope of employment.” But an assault will be found to be “within the scope of employment” when the assault is of the same general nature as the conduct authorized by the employer or is incidental to the conduct authorized. Thus, if an employer places an employee in a position that involves the use of force – such as a bouncer at a nightclub – the employer can be found liable for the employee’s actions, even if the employee uses more force than is necessary.
Written by:
Linda K. Leibfarth
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
