Employer NOT Vicariously Liable for Employee Actions

Suppose you have a scenario where an employee injures a patron under circumstances  in which:

1. the employee's shift had ended and she had clocked out.

2. the employee's boyfriend came to pick her up, but he gets into a fight with a patron

3. heated words are exchanged and then, without sufficient provocation, the much larger patron slaps the smart-aleck boyfriend  in the face knocking him to the ground.

4. the employee, who had clocked out and her shift was over, involved herself briefly in the fracas only to try to protect her much smaller boyfriend from a beating at the hands of the much larger, much more aggressive patron.

5. It should be noted that the employee was 4' 9" and weighed 115 pounds at the time of the incident.

Was this employee in the course and scope of employment ?

DETERMINATION OF COURSE AND SCOPE

In 2005, an employee of the Walmart in Bossier City was involved in a car crash in the parking lot of the store. The employee had just clocked out and was leaving to go home.  The trial court awarded a significant amount of damages and determined that even though the employee had clocked out ‘‘there is a reasonable period while an employee remains on the employer’s premises which is regarded as within the course and scope of employment.’’

The Appellate Court acknowledged that an employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. The Court explained, however, that there is a "course and scope employment test" which is applicable to determining whether employer is liable for tort committed by its employee. The test refers to time and place, and scope of employment and refers to the employment-related risk of injury.

 

For the employer to be vicariously liable for an employee’s conduct, the employee’s tortious conduct must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.

In the instant matter, it cannot be argued that rescuing her boyfriend from a beating in the parking lot is related to the employee's duties. She was off the clock and on a purely personal mission. The employer cannot be liable for her actions. Fortunately, even IF the employer had been on the clock, if her actions were purely personal, the employer would NOT be vicariously liable.

In order for an employer to be held responsible for the acts of its employee, the employee’s act must be employment related. There are factors useful in determining whether the employee’s act is employment-related.These factors include:

The payment of wages by the employer;

The employer’s power of control;

The employee’s duty to perform the act in question;

The time, place and purpose of the act in relation to the employment;

The relationship between the employee’s act and the employer’s business;

The benefits received by the employer from the act;

The employee’s motivation for performing the act; and

The employer’s reasonable expectation that the employee would perform the act.

The "act" for which the plaintiff seeks damages was when the employee came outside and tried to pull the plaintiff off her boyfriend. It is by this "act" that the plaintiff seeks to impute liability to the employer. A careful analysis of each factor of the "course and scope" test proves that the employee was not in the course and scope of employment. The "act", therefore, is not covered.

The plaintiff's actions do not satisfy thefactor

 

1. The payment of wages by the employer.

 

The plaintiff was off the clock and was not being paid when the act occurred.

2. The employer’s power of control.

 

Employer  had no control over whether  the employee would go outside and involve herself in the incident.

 

3. The employee’s duty to perform the act in question.

 

Fighting was not one of employee’s duties associated with her job.

4. The time, place and purpose of the act in relation to the employment.

The fight took place after work (employee had clocked out) and outside the premises of the employer. There was no relation between the act and the employment.

5. The relationship between the employee’s act and the employer’s business.

Fighting in a parking lot is certainly not at all associated with the employer’s business.

6. The benefits received by the employer from the actions.

The employer received no benefit from the employee's involvement in this altercation. To the contrary, they had been sued.

7. The employee’s motivation for performing the act.

Employee  was motivated by love for her boyfriend and fear of the injuries he might be receiving. She was not motivated by any reason for employer.

8. The employer’s reasonable expectation that the employee would perform the act.

Employer had no reasonable expectation that employee would perform any such act.

In the instant matter it is clear that NONE of the Davis factors were met. Not even one. The basis of employer liability for an employee’s tort is La. C.C. art. 2320, whichprovides in pertinent part:

"Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed."

There are limits, however, to the scope of liability of an employer. In Davis, the Court reiterated its earlier ruling that liability of an employer for the acts of an employee ‘‘will attach only if the employee is acting within the ambit of his assigned duties and in furtherance of his employer’s objectives.’’ Wearrien v. Viverette, 803 So.2d 297., (La.App. 2 Cir. 12/5/01).