Working status key in cases against employees 

Last week, this column addressed the question of when an employer is responsible for the acts of their employees. This column will continue defining when, and under what circumstances, the employer is responsible.

First, just because an employer may be liable for the harms caused by their negligent employees does not mean that they are automatically liable for any accident involving their employee. Following an accident an employer steps into the shoes of the employee, meaning that it not only has responsibility for any harms caused by its at-fault employee, it has all the same defenses against liability that the employee has. Therefore, if the employee has a valid defense, and is not at fault, then the employer does not have to pay for the damages.

It is not only traditional businesses that can be held responsible under this theory. A homeowner employing a nanny, gardener or maid could be held liable for the harms caused by their negligent household help. Therefore, it is important to make sure that you have homeowners, or renters, insurance that would cover such a loss.

A threshold issue is always the employment status of the person who caused harm. Frequently a company will claim that it does not employ the wrongdoer, but instead the wrongdoer is an independent contractor and, therefore, solely responsible for the harm they cause. In California, an employer cannot escape liability by merely calling someone an independent contractor. Our state applies the control test to determine who controls the manner and means in which the work is being preformed.

This requires consideration of factors such as who sets the hours of employment, who provides the equipment and tools, who accounts for taxes (deductions), how much instruction and direction is given, the amount of authority bestowed and the right to discipline or terminate. I spent four hours just this last week taking testimony from a witness to prove that he was the employee of a larger corporation that should be held responsible for injuries he caused.

If an employer hires a temp or even borrows another employer's worker to assist them and that worker causes harm because of negligence, the borrowing employer is liable under the special employee doctrine. In a recent case where a tile contractor asked a painting contractor's employee to help unload a truck and the painter crushed the foot of a passer-by when she dropped the box, the tile company was responsible for the damage to the plaintiff's foot.

A difficult analysis arises when there is an act of physical assault by an employee. For example, in a nightclub if a bouncer punches a patron, the nightclub owner would be liable for any injuries caused by any unreasonable acts of the bouncer. In these cases (which I have seen too many times) the legal question most often presented is whether the bouncer was justified in using the degree of force that was employed, i.e., did they have a reasonable fear of bodily harm to themselves or another so as to use reasonable force against the patron.

If the bouncer was off-duty and just a regular clubgoer or acting out a personal vendetta, the employer is not liable for their acts because they are outside the scope and course of their employment. If they are on the job and act reasonably in defense of themselves or another, neither they nor the employer is liable for the harm to the patron. If the bouncer acts without provocation, lets their ego get in the way and punches a drunk making smart-aleck comments or uses too much force, the employer can be held liable.

I have seen cases where the bouncers or bartenders were justified and others where they were not. I have even seen incidents where an irate, out-of-control bouncer swung and hit an innocent bystander breaking her nose and jaw. In that case, the nightclub was held responsible not only because its employee was negligent, but also because it hired someone who had been convicted of assault with a deadly weapon and spousal abuse.

Next week, I will answer the question of who is responsible when a pink-mustache car runs a red light.

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

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