Posted by Sansone / Lauber Trial Lawyers on January 26, 2014SHARE IT
Employers and other principals can be “vicariously liable” for an employee’s or agent’s negligent acts, including negligent operation of a motor vehicle.
For vicarious liability to exist the Plaintiff (person bringing the lawsuit claiming injury) must prove that the negligence was committed by the employee or agent while in the course and scope of the employment/agency. Typically the relationship is obvious, a furniture delivery truck driver causes a truck accident when making a delivery, clearly works for the furniture company or the truck company hired by them, and obviously within course and scope of that employment or agency relationship. However, agency relationships can be created by consent and without compensation. See, Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605 (Mo. 2008), holding agency existed when a nephew drove his aunt to meeting that she wanted to attend and could not drive herself.
Typically, conduct is within the course and scope of employment if the conduct:
- Is fairly and naturally incident to the employer’s business; and
- The negligence occurs while the individual s also engaged in the employer’s business.
Mc-Clure v. McIntosh, 770 S.W.2d 406 (Mo. Ct. App. E.D. 1989).
What if the Employee Departs from His Required Course and Takes care of a Few Personal Matters?
If at the time of a car or truck crash, the negligent employee left work for a personal errand not connected with their job (going to lunch) then sometimes the employer-employee relationship is suspended, and there is no vicarious liability, meaning the employer is not responsible for the employee’s negligent acts during that period even if the employee used the employer’s vehicle.
However, the employer may is still liable under the “dual purpose doctrine”. If the employee’s work requires the travel, the employer can be vicariously liable even if the employee also attends private purpose. Burrell x rel. Schatz v. O’Reilly Automotive, Inc., 175 S.W.3d 642 (Mo. Ct. App. S.D. 2005). An example of the dual purpose doctrine: using the furniture delivery truck driver example from above; say the truck driver makes a slight detour to grab lunch from his favorite fast food restaurant, clearly a personal matter, however, the travel is required for work, therefore the dual purpose doctrine. The dual purpose doctrine would not apply if the secretary of the company used the truck during her lunch hour to go get her own lunch and caused an accident, that would be outside the course and scope. Thus in that situation the injured victim would most likely only sue the driver, however, the employer’s insurance covered the truck so they would be responsible for the damages through insurance.
Rebuttable Presumption of Agency:
Typically, if the employee was on the clock or driving a company owned car or truck, the employer will be responsible as well. In Missouri there is a presumption that the at fault driver was within the course and scope of their employment or agency if:
1. The employer/principal owned the vehicle at the time of the accident;
2. The driver was employed by the employer.
The above presumption can be defeated if there is substantial evidence showing that the employer did not: own the vehicle or actually employ the driver. Johnson v. Bi-State Development Agency, 793 S.W.2d 864 (Mo. 1990).