Employers have always been a favorite target for lawsuits when their employees cause personal injuries. The reason for this is simple: they have the money. An example from a recent Kentucky Court of Appeals case illustrates a common fact pattern. Trucking Company sends Trucker on a long-haul from Arkansas to Ohio. Trucker stops off in Florence, Kentucky to meet his girlfriend and retrieve belongings from her ex-husband. An argument ensues, and Trucker hits the ex-husband with a steel pipe causing him severe injuries and $150,000 in medical bills. One may assume that Trucker cannot satisfy a six-figure civil judgment. So, the plaintiff’s lawyer pursues the “deep pocket,” Trucker’s employer.
This type of situation can be stressful, disruptive, and potentially disastrous for the employer if it has not taken proper precautions to avoid liability. The example mentioned above is an abridged summary of the facts from the recent case of Carberry v. Golden Hawk Transportation, Co., No. 2011-CA-000269 (Ky. App 2013). The trial court in Carberry ultimately dismissed Trucker’s employer (Golden Hawk) from the lawsuit, and the Court of Appeals affirmed that judgment. A brief look at why the courts ruled in favor of Golden Hawk can help other employers avoid liability under similar circumstances.
First, the court considered whether Trucker was acting “within the scope of his employment.” This is always a primary issue in these cases. Where an employee is acting outside the scope of employment, it will be very difficult to hold an employer liable for his or her acts. In Carberry, the employee was acting outside the scope of his employment because he took a detour from his route, for personal reasons, and committed an intentional battery. An employer may not always have control over an employee’s conduct while out in the field. However, a few precautions can help bolster the defense that the employee was acting outside the scope of employment. These include having policies in place concerning the use of company equipment, keeping track of company equipment and employee activity, and maintaining an employee handbook delineating rules of conduct and job descriptions.
Second, the plaintiff in Carberry claimed that Golden Hawk negligently hired and retained Trucker. The Court of Appeals analyzed two key elements in ruling on the claim: whether an applicant is unfit for a particular job and whether hiring the applicant creates an unreasonable risk of harm. The Court found that the steps Golden Hawk took in hiring Trucker were sufficient and that hiring him did not create an unreasonable risk of harm. The fact that Golden Hawk performed a check of Trucker’s employment history and driving record—the most relevant information to his “particular job”—was decisive in the Court’s ruling.
An employer should, at a minimum, tailor its investigation of applicants to uncovering potential risks that may arise during the applicant’s employment. In deciding how to approach this task, the employer should strongly consider the standards within its particular industry and any laws or regulations that may apply. These are just a few points of simple advice in a complex area of law, but implementing them may help employers avoid stressful and costly problems.
If you would like to know more about these issues, please contact Ryan McLane, a Northern Kentucky associate in the Medical Malpractice, Construction, Administrative Law, and Civil Litigation Practice Groups at Dressman Benzinger LaVelle psc. Ryan can be reached at (859) 426-2143 or via email at firstname.lastname@example.org.« Back to news