Find out when you can seek financial compensation from the employer of a worker who caused your injuries. Follow the money and get what you deserve.
In stores, restaurants, on the road and even in our homes we encounter employees of business owners. When a careless worker injures you, their employer may be required to pay for your damages.
Here’s where we unpack the legal reasons employers may be on the hook for bad employee behavior, and what you can do to get the compensation you deserve for your injuries.
Why Employers Are Liable for Bad Employees
Most business owners carry general liability insurance to protect themselves from injury and property damage claims. General liability insurance covers things like customer slip and fall accidents, advertising errors, damage to others’ property, and can also pay for injuries caused by employees.
There are three legal principles used to hold an employer liable for employee behavior:
Respondeat Superior: A Latin phrase that roughly translates to “Let the boss answer,” this principle means the employer is responsible for anything employees do while on the job.
Vicarious Liability: Often used along with respondeat superior, vicarious liability means blame is assigned to a person who didn’t cause the accident but has a legal relationship with the person who hurt you. An employer has a legal relationship with their employee and can be liable for the actions of the employee. See this case example demonstrating vicarious liability.
Negligent Hiring: When employers don’t take reasonable care when hiring employees, or continue to employ a person whom they know may cause harm to others, the employer becomes liable for injuries caused by that employee.
If you’re seeking injury compensation, it helps to understand some terms used by insurance companies and lawyers:
- Duty of Care means the obligation to be careful and avoid causing harm to others.
- Negligence happens when an employer fails to act responsibly or does something no reasonable person would do — for example, hiring child-care workers without a background check.
- Liability simply means responsibility. The at-fault person is usually liable for the accident victim’s damages.
- Damages for bodily injuries can include medical costs, therapy and rehab costs, out-of-pocket medical expenses, lost wages, and pain and suffering.
- Proximate Cause is an action that sets off a chain of events leading to an expected result, like an injury, which wouldn’t have otherwise happened.
Challenges to Employer Liability Claims
Scope of duty: Under the respondeat superior principle the employee must have injured you while performing his job the way his employer intended him to do it. This is the most contentious part of a personal injury claim for an employee-caused injury.
It gets tricky when the employer, or more likely the employer’s insurance company, argues that the person who injured you wasn’t doing his job at the time. While employers are generally on the hook for what employees do while working, criminal activity isn’t usually part of anyone’s job description.
Example: Drunk Delivery Driver
Lily waited patiently at the traffic signal. She still had plenty of time to get to her appointment. The light turned green. Lily drove forward until her world exploded, as her car was violently T-boned by a delivery truck driven by a guy named Lex.
Lily was life-flighted to a trauma center, where she was treated for multiple injuries. She survived the collision but would never walk again.
Lex worked as a delivery driver for a local auto parts company. The day of the crash, he was driving the company truck to make his assigned deliveries when he decided to stop at a local sports bar for lunch. Lex tossed back several beers with his chili burger before he got back on the road.
The police investigation into the accident revealed that Lex was intoxicated when he ran the red light and crashed into Lily.
Lex lost his job, and his employer’s insurance company initially refused to pay for Lily’s damages, arguing that Lex was not acting within the scope of his employment by drinking and driving.
For an employer to be liable, in most cases the employee must have acted within the definition or scope of their duties. This means the employee must be performing his or her normal job duties when they cause the injuries or property damage.
Fortunately, that isn’t a free pass for employers. Business owners must do everything reasonable and practical to protect others from undue harm – particularly any harm which is foreseeable for the type of business they operate.
Example: Negligent Employer Has to Pay
Lily’s attorney wasn’t surprised when the auto part company’s insurance company initially denied his client’s injury claim. Insurance companies will try anything to avoid paying high-dollar claims. Lily was severely and permanently injured when the at-fault delivery driver crashed into her car.
Lily’s attorney filed a lawsuit against the auto parts company on her behalf.
During pre-trial discovery, the attorney forced the auto parts company to hand over their procedures for hiring drivers and Lex’s employment records. The attorney also got copies of Lex’s driving records, revealing prior DUI convictions.
Lily’s attorney told the jury that Lex’s employer was negligent for hiring a delivery driver with a history of driving while intoxicated. The company should have known that a company driver with a poor driving record was a danger to others on the road.
The jury agreed, awarding $2.7 million to Lily for her permanent injuries, future lost earning capacity and extreme emotional suffering.
When the Employee is an Independent Contractor
Some businesses classify their workers as independent contractors, meaning they are not legally considered employees of the business.
A perfect example is the beauty salon industry, where many shops have hairdressers, nail technicians, and estheticians who handle their own taxes and benefits. Beauty shop workers may not have liability insurance, but you can bet the shop owner does.
If you were injured by an independent contractor, you’ll likely need an attorney to pursue your injury claim. A good attorney can prove the person who harmed you meets the legal definition of an employee.
In our beauty salon example, employees would be defined as any workers required to:
- Charge salon rates
- Follow the salon’s dress code
- Work during the salon’s business hours
- Use the salon’s nail polish and other products
Don’t give up if an employer denies liability for your injury by saying their worker is an independent contractor. Contact a personal injury attorney to help you win full compensation for your injuries.
Proving the Employer is Responsible
No matter how terrible the circumstances of your injuries, the burden is on you to prove the employer of the person who harmed you is also liable for your damages, that your injuries are real, and all your damages are related to your injuries.
To prove the employer of the person who caused your injuries is also liable for your damages, you’ll need to show one of two things:
- The at-fault person was acting within the scope of their duties
- The employer was negligent for hiring or retaining the person
Proving the validity of your injury or property damage claim requires strong evidence. You won’t get a fair settlement without solid evidence to support your claim.
Knowing what to do, and mistakes to avoid can make or break your insurance claim or lawsuit.
Report violent crimes to police: Physical violence is a criminal matter, even if it happens in your home. Unfortunately, there are cases of rape and assault made by workers who come to the home to make repairs, deliveries, or other work-related reasons.
Local authorities are there to help. Learn more about Crime Victims Rights and Victim Compensation Funds.
Get medical attention: Never refuse or delay medical attention after an injury. Shock and distress can mask symptoms. You may be seriously injured at not realize it.
Refusing or delaying medical care can ruin your chance at compensation. The employer’s insurance company will jump at the excuse to deny your claim, arguing the employee did not cause your injury.
Contact the employer: If an employee injures you, don’t sit back and take it. Vowing you’re never going to come back to the business won’t pay your medical bills. Once you leave, it’s very difficult to come back later to file an injury claim.
For example, if you’re in a restaurant and the server spills hot coffee on your lap, don’t say, “It’s all right” because you feel sorry for the server. If you leave, and hours later you’re writhing in pain from where the coffee scalded you, it’s probably too late to go back and complain.
The manager could easily say you burned yourself somewhere else after you left the restaurant. At that point, your claim for damages may be doomed. Ask the owner or manager for the company’s insurance information. For large companies, also get the contact information for the corporate office.
Look for witnesses: Friends and family can provide a statement, but independent witness statements carry much more weight with insurance companies and juries.
Let’s say you were delivering medical supplies to a local hospital. You drove to the service area and unloaded the supplies. While waiting for the supervisor to sign off on the delivery, a forklift operator working for the hospital dropped some of his load on top of you, cutting your face and breaking your arm.
There were at least five hospital employees who saw the operator drop his load on you.
Ask the witnesses if they would write down what they saw and heard. Be sure they sign and date their written statements. The employees’ statements are powerful evidence. They’re from eyewitnesses who work for the same company as the forklift operator.
Testimony from eyewitnesses who work for the same company as the forklift operator are admissions against interest. In other words, they’re admitting something that isn’t good for their employer.
Injured while on the job? You need these 12 Tips to Maximize Your Worker’s Compensation Claim.
Take photographs, video, and audio: Use that cell phone! Today, almost all cell phones have cameras with video and audio recording functions. Remember, for employee liability claims you must prove the employee was acting within the scope of their duty.
Using our previous example, you’d want to photograph or video the area where you were standing when the forklift load landed on you. Photograph the forklift, and if possible, the operator who spilled the load. You can’t take too many photographs or too much video.
Use the audio recording function to interview witnesses, including employees who witnessed the accident. In addition to written statements, audio recordings will help make your insurance claim even more credible. If you can get the forklift operator to admit he accidentally dumped part of his load on you, your case will be just about airtight.
Verified damages: If a local emergency room or clinic treated you, get copies of your admitting chart and the doctor’s diagnosis and prognosis. The diagnosis makes clear the type of injury you received, while the prognosis details the type and extent of treatment you’ll need during your recovery.
You also need your medical bills and receipts for out-of-pocket expenses like medicines or crutches. If you had to miss work while recovering, ask your boss for a written statement of lost wages.
When You Need an Attorney
If you’ve fully recovered from soft-tissue injuries like bruises, small cuts, or sprained muscles, you can probably negotiate a reasonable settlement directly with the insurance company.
Calculate a reasonable compensation amount by totaling the cost of your medical bills, out-of-pocket expenses, and lost wages. Add one or two times that amount for pain and suffering.
Send a written demand with copies of your medical bills and records, receipts, and other evidence.
We’ve made it easy for you with a sample Personal Injury Demand Letter.
If you’ve suffered severe or traumatic injuries caused by an employee, you’ll need the help of an experienced personal injury attorney to get the compensation you deserve from the at-fault person’s employer.
You deserve expert legal help for cases involving criminal violence like rape and assault, or high-dollar injuries like traumatic brain injuries, spinal cord damage, or disfigurement.
There’s too much at stake to face the insurance company on your own. It costs nothing to find out what a skilled personal injury attorney can do for you.
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