Company not always liable for driver's wreck 

click to enlarge It might look like a delivery truck, but it could be a personal vehicle.
  • It might look like a delivery truck, but it could be a personal vehicle.

Our question this week comes from Frederica B. of El Cerrito:

Q: "I was T-boned in an intersection a month ago in Emeryville when a young kid ran a red light. I got his information, but now he tells me he doesn't have any insurance. The truck he was driving had the name of a florist on it. Is there any way to try and get the florist to pay for my medical bills and car damage?"

A: The short answer to your question is "that depends." There is a legal doctrine called respondeat superior, which is Latin for "let the master answer."

It is a doctrine that evolved through the common law (meaning through the courts rather than the legislature), which has now been codified in California Civil Code Section 2338. In short, it means that the employer of an individual is responsible for the torts (wrongs) committed by its employee that happen within the "scope and course of their employment." It is a form of vicarious liability. That is, where one person is held responsible for the negligence of another.

In these cases, a plaintiff must establish not only that the employee was negligent (acting in a manner that was unreasonable or illegal), but that he or she was also involved in the employer's business enterprise at the time of the accident.

Courts have articulated the following reasons for this policy based on a deliberate allocation of risk: it tends to provide a spur toward accident prevention, it tends to provide greater assurance of compensation for accident victims, and it tends to provide reasonable assurance that accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.

"The principal justification for the application of the doctrine of respondeat superior ... is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business" (Johnston v. Long, 1947).

One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. Foreseeability as a test for respondeat superior merely means that in the context of the particular enterprise the employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the costs of the employer's business.

Some courts have employed a two-pronged test which asks if the employee's action is 1) "either required or incident to his duties"; or 2) "could be reasonably foreseen by the employer in any event."

No matter how the test is phrased, liability under respondeat superior does not require that the employee's actions benefit the employer. In other words, the necessary linkage is that "the employee's tort must be foreseeable in light of the employee's duties." An exception under these rules applies where the employee has "substantially deviated from his duties for personal purposes."

So, Frederica, much depends on whether or not the young man was actually working for an employer at the time that he hit you. If he was merely using a truck that he had bought with the florist's name on it and hadn't repainted it, then the florist would have no fault.

Next week, I will continue to explain the intricacies of this doctrine, giving examples of when an employer may and may not be at fault for such a collision. Hopefully this will not only help people like you who have been injured, but also help employers understand when they may be liable for the acts of their employees.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

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