Final Paper -The Vicarious Liability of an Employee's Automobile Accident
Final Paper -The Vicarious Liability of an Employee's Automobile Accident
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Date Created: 11/15/15
Vicarious Liability The Vicarious Liability of an Employee s Automobile Accident Susan Jones Bus 31 1 Professor Martin Connor August 1 2011 Vicarious Liability The Vicarious Liability of an Employee s Automobile Accident Employers have a relationship with their employees known as the employer employee relationship The employer has the power to control the activities of the employee therefore the acts of the employee are considered the acts of the employer This power comes with certain liabilities In the case of an employee39s acts of negligence the employer may be vicariously liable to nonemployees involved Employers are liable to third parties who are injured by negligent employees Richards 2009 For example an employer may be held responsible for an automobile accident caused by the negligent acts of its employees This paper will discuss the employer s vicarious liability resulting from an employee s automobile accident including the facts of the accident the employeremployee relationship and the settlement between the employer and one of the injured third parties On August 27 2010 I was involved in a threevehicle accident Based on the police report party 1 Pl was northbound on the Olive Drive offramp from Highway 99 traveling at approximately 40 mph Party 2 P2 was ahead of P1 traveling at an unknown speed Party 3 P3 was stopped ahead of P2 on the Olive Drive offramp P1 applied the brakes but due to his intoxication he was traveling at an unsafe speed and was unable to stop in time P2 applied the brakes The front of vehicle 1 Vl struck the rear of vehicle 2 V2 V2 was forced into and struck the back of vehicle 3 V3 All vehicles came to rest on their wheels facing north on the northbound Highway 99 Olive Dr offramp The accident occurred at approximately 515 PM The road conditions were normal yet the traffic was heavy I was in my personal vehicle P3 at a stop when I heard the sound of a collision behind me I looked in my rearview mirror to see a white van sliding into the rear of my car I immediately checked my oneyearold son sitting in his child safety seat behind the Vicarious Liability passenger seat for any injuries I played a DVD movie for my son to help calm his fears and anxiety Once he was calm I used my cell phone to report the accident and to ask for immediate assistance I was told that a police officer would be arriving shortly I looked around to see if it was safe for me to get out and talk to the driver behind me My car was safely out of the way of traffic so I stepped out of my car to conduct my own investigation I needed to exchange identification and insurance information with the driver of the other vehicle As I walked behind my car I noticed that there was not just one vehicle but two vehicles that were directly involved I walked up to the work van directly behind me to exchange information with its driver He was identified by his California driver s license as Lawrence Andrew Merryman His proof of insurance identified his employer as Protection One Alarm Larry stated that as he applied his brakes to slow down behind my car he was rear ended by a work van He added that he kept his foot on the brake but was still forced into the rear of my car He stated that he was fine but may have a slight head injury or whip lash due to his head hitting the steering wheel and the head rest of his seat very hard I could not see any signs of physical injuries such as cuts or bruises so I left to investigate further I then walked behind Larry39s work van and approached the driver in the other work van The man was sitting in the driver s seat with the door open I introduced myself to him and provided my information I then asked for his information He looked dazed and glossyeyed as he reached into a compartment for his documents He was identified by his California driver s license as Justin Dwight Lemons His proof of insurance identified his employer as PGampE Company As we exchanged information I could smell the odor of an alcoholic beverage on him I asked if he had any injuries but had some difficulty understanding Justin s response Vicarious Liability because his speech was slurred I did not want to confront him with my observation in fear of the unknown So I ended the conversation by telling him that assistance will be arriving soon and walked away As we all waited for the authorities to arrive at the scene of the accident I took pictures of the damages on all three vehicles I returned to Larry to discuss my apprehension I mentioned that I smelled the odor of alcohol on Justin and was very concerned Larry said that he noticed the odor when he spoke to Justin too We both agreed to mention this observation to the authorities When the authorities arrived on scene each party gave their statements I was able to leave since my vehicle had minor damage and was operable Larry39s work van needed a tow After conducting field sobriety tests Justin was determined by the responding law enforcement officers to be under the in uence of alcohol and was arrested His work van was impounded after his arrest Agency law is concerned with any principal agent relationship a relationship in which one person has legal authority to act for another such as in an employer employee relationship USLegalcom 2011 An agency agreement is a contract between the principal and an agent or the employer and an employee which states the rights and duties of each party Generally the agency agreement may either be written or oral and either expressed or implied When the agency is implied it may be conditional from the relationship of the parties and the nature of the employment without any proof of any expressed employment For the most part many employees believe that they do not have a contract with their employer since they did Vicarious Liability not sign a contract for employment However their agency is implied based on their relationship with their employer and the nature of their employment Prior to the first day of employment most employers require new employees to read and sign different documents pertaining to their employment These documents may include medical benefits life insurance employment handbooks and emergency contacts By signing these documents the employee is providing his or her acknowledgment of and consent to abide by the information contained within these documents The employee handbook normally provides the company standards procedures and regulations in which both the employer and employee must follow Contracts are very similar in that they state the agreed duties and requirements for all parties Therefore the employee handbook may serve as the employer employee contract Both the employer and the employee have duties to each other The employer must pay an agreedupon salary or wage to an employee for his or her services The employer must also provide a safe workplace proper tools supplies and equipment for the job to be performed in a harassmentfree environment The employee must obey the company s policies and procedures concerning their employment consciously perform his or her work carefully and perform in good faith toward his or her employer In an employer employee relationship the employer has the power to control the activities of the employee The employee is subject to the employer39s control and must act in accordance to the employer39s direction However the employer will also have liabilities in a wide variety of situations According to Liuzzo and Bonnice 2010 The acts of an employee committed while performing duties are considered the acts of the employer Therefore the employer is liable to third parties for injuries Vicarious Liability caused by an employee whether the acts are willful or negligent so long as the acts were committed by the employee within the ordinary course of employment The employee is also personally liable for wrongful acts that result in injuries to a thirdparty whether they are intentional or the result of negligence p 254 I believe that employers are susceptible to vicarious liability Vicarious liability is when employers are liable for wrongful acts committed by their employees during the course of their employment Schofield 2005 However whether or not an employer is liable for the acts of its employee will ultimately depend on the facts Nicholls 2003 para 5 There are useful steps that employers can take to minimize the risk of vicarious liability First of all employers must perform preemployment checks For example an employee must provide a valid driver s license if his or her role involves driving as part of his or her duties Secondly employers must lay out clear guidelines as to the type of behavior which is unacceptable And they must ensure that their employees are aware of the potential consequences for noncompliance And thirdly clear policies should be put in place to allow employers to deal consistently and equally with their employees By having an opendoor policy within the workplace employers may become aware of potential problems sooner rather than later Regarding my case one might say that PGampE is not liable because Justin Lemon was driving home at the time of the accident To countersupport this opinion McLaughlin 2000 said that a A London jury has held an employer partly liable for injuries a drunken worker caused when his pickup truck hit another vehicle after work the company wasn t even aware that the driver was drinking para 1 Vicarious Liability Fortunately for me PGampE believed that they were liable for their employee s negligent act of driving under the in uence of alcohol causing the threevehicle accident They were willing to offer me a settlement based on the principle of vicarious liability to avoid the involvement of the court In addition PGampE did not want any additional negative publicity Shortly after the time of their employee s auto accident on September 9 2010 PGampE was dealing with the repercussions of their natural gas pipeline explosion that killed eight people injured numerous others and destroyed dozens of homes in San Bruno California Cal gov 2010 The PGampE claims representative Carol assigned to my case stated that PGampE s settlement would be based on my pain and suffering She clearly stated that it was PGampE s policy to calculate normal pain and suffering by multiplying the total medical expenses by three Medical expenses included emergency room visits medical prescription expenses and any other outofpocket costs related Carol also stated that my outofpocket expenses would be reimbursed if I provided detailed receipts to PGampE My outofpocket medical expenses consisted of the copays of emergency room visits for both me and my son and three prescriptions for me Under the medical portion of my automobile insurance policy my xrays six weeks of chiropractic visits and deep muscle massages were covered The repairs to my vehicle and the cost for a rental car were both covered under the liability portion of my automobile insurance policy At the conclusion of my physical therapy and chiropractic sessions Carol had provided PGampE39s offer to settle in my automobile accident case The monetary offer was approximately three times the total cost of my medical expenses just as Carol had advised in our first Vicarious Liability conversation However there was no mention of reimbursement for physical damages to my vehicle or for the cost of the rental car I still had a few concerns regarding the uniqueness of my case so I contacted a friend who was an attorney to discuss my options I was advised that the claims representative has the authorization to offer three levels of monetary settlement for each claim The first level is three times the amount of medical expenses The second level is five times the amount of medical expenses And the third level is seven times the amount of medical expenses If the injured party is fighting to receive more than the amount the claims representative can offer then the case may need to go to court I performed my own calculations using three levels of compensation I viewed my case in different angles and weighed my decision based on Justin Lemon s negligent act of driving under the in uence of alcohol Then I prepared a counter offer in response to PGampE39s offer of settlement I contacted Carol by phone to discuss PGampE39s offer First of all I wanted to make sure that PGampE would reimburse my automobile insurance company for the repairs to my vehicle and the cost of the rental car Carol reassured me that once I signed and faxed over the authorization release forms my automobile insurance company will be contacted PGampE will directly reimburse my automobile insurance company all of the expenses incurred including the cost of repairs to my vehicle the cost of the rental car the emergency room visits the cost of xrays and the total costs of my physical therapy sessions I then began to negotiate with my goal in mind to settle for a monetary amount close to the third level I started the negotiations by stating that my case was not a normal pain and suffering case due to the involvement of alcohol I verbally reviewed the facts of my case to Carol I Vicarious Liability mentioned that my medical treatment required six weeks of physical therapy and lost unpaid time from work The pain of my injuries required ample amount of rest which took time away from my children Also the trauma of the accident caused my oneyearold son to have nightmares and fears of riding in vehicles for numerous months following I then advised Carol that I had consulted with an attorney regarding my options Carol39s response was Are you refusing the offer and retaining the services of an attorney to file a suit against PGampEquot I clearly stated that I only consulted an attorney to learn more about my options I then gave Carol my counter offer for a monetary settlement between the second and third level Once she was reassured of no attorney involvement Carol accepted my counter offer and immediately sent me the settlement document for my signature In conclusion employers are legally responsible for wrongful acts committed by employees in the course of their employment based the principle of vicarious liability The pertinent test is whether the employee39s wrongful behavior was so closely connected with acts the employee was authorized to do Because the employee was found legally intoxicated on his way home from work he was legally impaired during the course of his employment According to the employer employee relationship the acts of an employee are considered the acts of the employer The employee is also liable for wrongful acts that caused injury to third parties I was fortunate to have reached a settlement with PGampE and avoided the stress of a lawsuit Even though Justin Lemons should have been held directly liable for his negligent act I did not want to put forth any more of my time and effort to pursue further justice I was content with the outcome of my settlement with PGampE Vicarious Liability Vicarious Liability References Calgov 2010 Sept 9 2010 San Bruno Explosion Retrieved from httpWWWCDuccagovPUCeventssanbrunohtm Liuzzo A L amp Bonnice J G 2010 Essentials of Business Law 6th ed New York McGraWHillIrwin ISBN10 0077329503 Jennifer McLaughlin 2000 January Company found liable for employee39s drunk driving in civil trial 0H amp S Canada 161 12 Retrieved from httDDroquestumicomDadweb did49833946ampsid3ampFmt3ampclientId74379ampROT309ampVNamePOD Peter Schofield 2005 April Taking the rap for your workers39 wrongdoings Personnel Today 14 Retrieved from httpproquestumicomDdeeb did82977173 1 ampsid3 ampFmt4ampclientId74379ampROT3 09 ampVNamePOD Richards E P 2009 Thirdparty liability The Medical and Public Health Law Site Retrieved on April 19 2009 from httpbiotechlaWlsuedumapThirdPartyLiabilityhtml USLega1com 2011 Agency law amp legal definition Retrieved from httpdefinitionsuslegalcomaagencv Vanessa Nicholls 2003 December Out of hours out of mind Works Management 5612 11 Retrieved from httpDroquestumicomDadweb did5 2899309 1 ampsid3 ampFmt4ampclientId74379ampROT3 09 ampVNamePOD
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