Spokane Washington attorneys must determine several things before trying to recover damages against an employer. Damages caused by an employee could be recovered against the employer under the legal theory of Respondeat Superior. Lawyers determine the following:

A. Who is an employee?

Employee versus Independent Contractor

It is important to distinguish between individuals who are employees and those who are independent contractors.

Individuals and organizations are responsible for wrongs committed by employees, but are not responsible for wrongs of independent contractors.The distinction between an employee and an independent contractor can be blurred.

The ultimate issue is how much “control” the employer has over the manner in which the individual performs her work. The greater the degree of control, the more likely that the individual is an employee.

When Spokane, Washington, attorneys determine if a hired party is an employee or an independent contractor, they consider the following factors:

  • (a) How involved is the employer in specifying how the work will be performed? – If the employer specifies the details of how the work is to be performed by the hired party, it is more likely the hired party is an employee.
  • (b) How is the hired party compensated? – Is the hired party paid by the project or by the hour. A person paid by the hour is more likely to be an employee.
  • (c) What relationship did the employer and the hired party intend to form? – While the intended relationship is a factor, it is not determinative.
  • (d) Whose tools are used? – If a hired party uses her own tools, she is more likely an independent contractor.

B. Was the activity within the scope of employment?

Spokane Washington attorneys know that for wrongs of an employee to be imputed (or transferred) to the employer, they must have occurred within the scope of employment.

Activities are within the scope of employment if they occur within the course of carrying out job requirements. Some activities are clearly within the scope of employment, while other activities are ancillary to scope of employment.

Once the court determines that an activity is ancillary, the court must determine whether that activity is frolic or detour.

  1. Frolic- includes activities of an employee that have no relationship to the scope of employment. Damage arising from activities determined by a court to be frolic does not result in employer liability.
    • Example– Barney, on his delivery route, drives 50 miles out of his way to purchase and consume a specially brewed beer. On his return from the store, he negligently runs over Lisa. Barney’s excursion has no relationship to his carrying out his job. Therefore, Barney’s employer is not vicariously liable for Lisa’s injury.
  1. Detour- includes activities of an employee that, although ancillary to the scope of employment, are incidental to the scope of employment. An employer may be held liable for damage arising from activities determined by a court to be detour.
    • Example– Barney, on his delivery route, stops for lunch. While driving through the drive-thru, Barney negligently hits Lisa. Stopping for lunch while on a delivery route is incidental to Barney carrying out his job, and Barney’s employer may be held liable for any injury caused by Barney during his detour.
  1. If an employer is found vicariously liable for an employee’s wrong doing, the employer is entitled to be indemnified. Indemnification results in the employee reimbursing the employer for damages resulting from the employee’s behavior.
    • Example– Spokane, Washington, attorneys sue employer Cain for employee Abel’s negligent behavior and Cain is found vicariously liable under Respondeat Superior. Cain can sue Abel to recover the amount of damages that Cain was required to pay for Abel’s negligence.

Note: If Spokane, Washington, attorneys find that Respondeat Superior applies means that an injured plaintiff can sue an employer for wrongs committed by their employee.

This may be important to an injured party because, although an employee may be liable for her own wrong, she may not have the financial resources to compensate the plaintiff for damages awarded by the court. Thus, a finding that Respondeat Superior applies means that the plaintiff can collect damages from the employer, and, as discussed on the links below, the employer can seek to be indemnified by the employee.

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    Hector E. Quiroga
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