Suppose you or someone you know has been involved in an accident with someone because of that person’s negligence. The basic assumption for the majority of people would be to sue this individual for damages as a result of the accident.
However, there could be a twist that you or your acquaintance should be educated on. What if the person who caused the accident is an employee of someone, and when the accident occurred, is acting in the course and scope of his duties to his employer?
If this is the case, the you not only sue the individual but his employer as well. This is a legal concept known as vicarious liability. It is also referred to as the doctrine of Respondeat Superior. Simply put, an employer is liable for the negligent acts of its employee if:
- The individual who caused the accident is an employee of said employer; and
- The negligent employee who caused the injury was acting within the course and scope of his or her employment when the accident occurred.
Determining Whether an Individual is Employee or Independent Contractor
Determining whether an employee/employer relationship exists requires a careful analysis of the facts governing the situation. Specifically, how do you know if someone is an employee or an independent contractor? Tennessee Supreme Court has determined that several factors should be taken into consideration when determining whether an individual is an employee or acting as an independent contractor. Beare v. State of Tennessee, 814 S.W.2d 715 (1991.)
These factors are as follows:
- The right to control the work.
- The right to terminate said employment.
- The manner of payment.
- The ability to hire and fire, both the individual and other personnel.
- The responsibility to provide supplies and tools needed to work.
- The freedom to schedule hours of daily work.
- The freedom to perform work services for other companies.
The most important factor to note here is the ability or right to control the work- that is, the manner in which the work is accomplished. The reason is because if an individual is not operating under the control of another and has the ability to control his own actions with regard to performance of the job, it is more likely the individual is operating as an independent contractor.
If this is the case, there is no larger entity likely responsible for his actions. To put it another way, if a person is hired and told to get the job done by whatever means he chooses, he is likely an independent contractor. On the other hand, if he has a boss who tells him when to be at work, how to do the job, what equipment to use- he is likely an employee.
When Does Vicarious Liability/Respondeat Superior Apply?
For vicarious liability, or Respondeat Superior to apply, there must be an employee/employer relationship. It is extraordinarily important to know whether such a relationship exists if you are injured by someone acting in the course of their job duties. The primary reason is because of the insurance coverage likely to be available to cover your loss. It is almost a certainty a company will be far better suited to pay for your damages than an individual.
See What is My Personal Injury Case Worth? There is no harsher result than for an injured person to receive a substantial recovery amount and have no means of collection. It is one thing to get a judgement and quite another to collect it.
For this reason, it is essential to contact a skilled personal injury attorney if you are injured by the negligence of another. I have years of training and experience that will enable me to discover all possible sources of recovery to ensure you get what you deserve.