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Vicarious Liability

"Respondeat Superior" - Liability for Acts of Employees

 

Your actions can directly cause a lawsuit not only against you, but also against your employer. The term "respondeat superior" literally means "the superior shall respond." Under the doctrine, the innocent principal or employer is liable for the torts of the agent or employee committed while acting within the scope of his employment. It is immaterial that he acts in excess of his authority or contrary to instructions. (See, Rest.2d, Agency 219, 243 et seq.; also, Calif. Civil Code 2338.)

 

Course and Scope of Employment

 

To impose liability on the principal or employer, it is essential that the agent or employee be acting for the principal within the scope of his employment (i.e., engaged in work he was employed to perform, during his working hours). (See Rest.2d, Agency 228, 229, 235).

 

The question as to whether or not an employee is acting within the course and scope of employment depends upon whether the act was: (1) either required by, or incident to, the employee's duties, or (2) could be reasonably foreseen as an outgrowth of the employee's duties. (Borg-Warner Protective Services Corporation dba Wells Fargo Guard Services v. Superior Court (1999) 75 Cal.App.4th 1203.)

 

The reasons for holding the employer responsible for the actions of the employee, if the employee is acting in the course and scope of employment, are to prevent recurrence of the wrongful conduct, to give greater assurance of compensation for the victim, and to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that give rise to the injury." (Mary M. v. Los Angeles (1991) 54 Cal.3d 202, 209, 285 Cal.Rptr. 99, 814 P.2d 1341.)

 

Vicarious Liability and Intentional Torts (Wrongful Conduct)

 

Liability under the doctrine of respondent superior extends to malicious acts and other intentional torts of an employee committed within the scope of his employment. See Rest.2d, Agency 231, 244 et seq.; 17 Cal. L. Rev. 185; 82 Harv. L. Rev. 1568; 12 So. Cal. L. Rev. 196; 1942 A.S. 495.)

 

Workplace Violence

 

As a security officer, you might well be involved in trying to prevent violence that occurs in the workplace. Often, this involves nothing more than being aware of your surroundings and listening to your clients when they describe issues about which you should be aware.

 

For example, if you are working in the lobby of an office building, and are required to check identification of employees and visitors, you might be asked to make sure a certain individual is not allowed up due to a restraining order in place against him due to acts of violence. Hopefully, you will be given a photograph to accompany a copy of the valid restraining order.

 

Under such circumstances, if the person shows up they are immediately "arrestable" and can either be placed under private persons arrest or the police may be called. More importantly, the person (usually an employee of a tenant in the building) who is the intended victim of the violence should be notified and affirmative steps taken to protect that person until the police can arrive to take the violator into custody.

Similarly, simply observing situations can often prevent an incident from occurring. For example, if two employees are seen arguing, simply approaching and inquiring whether everything is all right might be enough to allow individuals a chance to think about what they are doing and to simply cool down.

 

If your post duties require specific duties pertaining to the prevention of workplace violence, you should be sure to request additional training to ensure that you understand what to do and how to act.

 

Restraining Orders

 

Both a corporation and an individual may obtain a restraining order from the court. Unfortunately, there are situations where an employee is being stalked or harassed. The stalker may be a serious threat not only to the employee, but if the harassment occurs at the place of employment, others in the company may also become victims.

 

Code of Civil Procedure Section " 527.8 allows an employer to obtain a restraining order on behalf of one of its employees. Section 527.8 states in part:

 

"(a) Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence by that individual."

 

The officers on duty, at the place of employment, must have knowledge of the restraining order. The officers should know the identity and be familiar with the appearance of the person(s) restrained. A photograph of the person is helpful.

 

It is a crime for a person to knowingly violate a restraining order. Consequently, the laws and duties of the officer with respect to detention and arrest apply when a person is found to have violated a restraining order.

 

Damages

 

As discussed briefly in the negligence section, there are different types of damages. An injured party may recover economic damages, non-economic damages, and punitive damages. Economic damages are "objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business opportunities." (California Jury Instruction 14.01.)

 

Non-economic damages are subjective, non-monetary losses including, but not limited to pain and suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, humiliation, and injury to reputation.

 

Punitive damages are damages that are not necessarily related to the injury. Punitive damages are damages awarded by the jury to punish the Defendant for their actions. Such damages are not allowed in a negligence case. However, punitive damages are allowed in actions that allege intentional torts, such as assault or false imprisonment or possibly in actions where the party knew of a prior accident and failed to fix the hazard. An insurance policy does not cover punitive damages. An employer is not required to pay for punitive damages awarded against its employee.

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