Scope of Employment

Employers are liable for vicarious or imputed liability of the actions of employees whether or not employees act negligently or intentionally. As long as employees are not engaged in private and personal matters of their own, and are acting within the realm of their employment by engaging in the employer's business at the time of any injury, employers may be liable. If the employee was acting on the behalf of his or her employer at the time of the injury, on or off the clock, the employer may be liable. A liberal interpretation of the scope of employment is endorsed by the courts, even if the acts were unlawful, unauthorized, or forbidden. This is true as long as the conduct is within the general duties of employment for which the employee was hired. This generally does not include when an employee is driving to or from work.

Employer liability may be limited when considering the employee's motivation. If the employee has personal animosity toward a claimant, the employer cannot be held liable. If an argument arises from how an employee is completing his or her work, the employer may be held liable even if the employee displays a personal dislike for the customer and the actions were intentional. If it is part of the employee's job description to resolve customer complaints, dealing regularly with customers, employers may be held liable for an assault resulting from the employee's attempt to resolve the customer complaint. If it is not part of the employee's job description, and they are not authorized to interact with customers, the employer may not be held liable for assaults that occur if an employee attempts to detain a customer.

Independent Contractors

Employers are not responsible for the actions of independent contractors when contractors exercise independent businesses that are not subject to the control or immediate direction of the employer. It is difficult at times to determine whether an individual is an employee or an independent contractor. The status is decided by how much control is exercised by the employer. Independent contractors are normally listed as such in their contract for employment. Whether or not the employer ever actually exerts control over the performance of the independent contractor, if it is specifically called for in the contract, then the relationship is one of employee/employer. Although this is a general rule regarding independent contractors, there are other circumstances where the owner may be liable for accidents on their premises in this situation. An experienced Premises Liability attorney will be able to review the specific laws in your state that pertain to your situation.

Hiring and Retention Negligence

If an employer potentially knew or should have known of potential risks when hiring an employee, they may be liable for the acts of that employee if they cause an injury. It must be proved by the injured party that the employee was unsuitable for that particular position or their background procedure check of potential employees was faulty or unreasonable. For example, if the employee had a background of violent or criminal inclinations, the employer is potentially liable for any physical attacks by the employee. Depending on the kind of work to be performed, employers have a higher duty to investigate the employee's background. This does not pertain for employees of an independent contractor where the owner did not actually hire the employee.

False Arrest and Imprisonment

An extensive number of lawsuits against owners relate to the detention and arrest on suspicion of shoplifting or other such misconduct. If there is no probable cause of the person committing a crime, actions may be filed for false imprisonment as the person was unlawfully detained, no matter how long the detention lasted as they were deprived of their personal liberty. The definition of probable cause is that there is existence of facts and circumstances reasonably showing that the persons charged were guilty of the crime for which they were arrested.

A detention need not consist of physical restraint, but may arise out of words, acts, gestures, which specify a reasonable apprehension that force will be used if the claimant does not submit. If the claimant agrees of his own free will to surrender his freedom of motion, as by remaining in a room or accompanying the owner or his employees voluntarily, to clear himself of suspicion or accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment. When a claimant consents to a search of his person, there has been no imprisonment as a matter of law, and the claimant cannot maintain an action against the owner. In addition, there is no imprisonment when an employee merely asks a customer a question, and the customer's response does not require further action on the part of the employee.

A claimant can bring an action for false arrest if the owner acts with malice and without probable cause in arresting him. An arrest can be made with a warrant or without a warrant. An arrest is accomplished whenever the personal freedom of another to come and go as he pleases is restrained, no matter how slight such restraint may be. Malice consists of personal spite or general disregard of the right consideration of mankind, directed by chance against the individual injured. Malice is presumed if the owner has a total lack of probable cause to make an arrest.

As long as an owner has probable cause to suspect someone of a crime on his or her premises, they may not be held liable for an ensuing arrest. Even if the accusations are inaccurate, as long as the owner maintains a reasonable belief that a crime has been committed, they may not be held liable for a detention that turns out to be unsubstantiated. There are several reasons that owners (or their employees) have probable cause to detain someone. These include the appearance of making unauthorized credit card purchases, criminal trespass (refusing to leave after repeatedly asked to do so), and possible merchandise theft (suspicious activity leading to probable cause). The owner must also investigate sufficiently before detaining a possible criminal by checking on the reliability of both the source of the accusation and the reputation of the detainee. The owner must also review the detainee's explanation for the incident, as well as the reason for prompt action by the employee. If a police officer is involved in the suspicion and subsequent detention of the accused, the owner is not liable for the arrest. Only if the police officer is relying on the statements of the owner's employee, and they turn out to be false, may the owner be held accountable for any damages.

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