11.6 Employer Liability for Employees’ Actions

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

11.6 EMPLOYER LIABILITY FOR EMPLOYEES' ACTIONS

11.601 Overview. In addition to the first-party tort actions brought by a co-worker or a third party directly against an employee who has injured them, a plaintiff may also have a separate tort claim against that person's

[Page 527]

employer. Depending on the facts, a supervisor, business owner, or other business entity may be liable for the wrongful actions of an employee under three different theories: (i) respondeat superior; (ii) negligent hiring; or (iii) negligent retention.

11.602 Respondeat Superior. ⁵³⁸ When an employee acting within the scope of employment causes an injury, an employer could be held responsible to the person whom the employee harmed under the theory of respondeat superior. ⁵³⁹ In Davis v. Merrill, ⁵⁴⁰ the seminal Virginia case, a switchman employed by Norfolk and Western Railroad shot and killed a passenger in a vehicle as it passed across the tracks after he had raised the gate. The court noted that

the test of the liability of the master for the tortious act of the servant, is not whether the tortious act itself is a transaction within the ordinary course of the business of the master, or within the scope of the servant's authority, but whether the service itself, in which the tortious act was done, was within the ordinary course of such business or within the scope of such authority. ⁵⁴¹

More specifically,

an act is within the scope of the employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business, "and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account." ⁵⁴²

[Page 528]

Once the employer/employee relationship is established, the burden shifts to the employer to show that its employee was not acting within the scope of his or her employment. ⁵⁴³ In evaluating whether an employee is acting in the scope of his or her employment, "the motive of the employee in committing the act complained of is not determinative of whether it took place within the scope of the employment relationship. Rather, the issue is 'whether the service itself, in which the tortious act was done, was within the ordinary course of such business.'" ⁵⁴⁴

In Parker v. Carilion Clinic, ⁵⁴⁵ the Virginia Supreme Court, reverting to "first principles" and adhering to "ancient landmarks," further clarified the appropriate test to be applied to claims based on respondeat superior:

To put the matter succinctly, "[t]he doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose." ⁵⁴⁶

[Page 529]

The court explained that the "job-related-service principle" does not limit vicarious liability to acts by an employee that "promote the object of employment" but does prevent it being

imposed if the tortious act did not arise out of the "very transaction" . . . or service or task, that the employee was being paid to perform [even if] the employee was using his [employer's] property and the injury would not have been caused without the facilities afforded the employee by reason of his relation to his employer." ⁵⁴⁷

After reviewing its prior holdings in Plummer, Majorana, and Gina Chin, the court emphasized that in each of these cases, "the tortious act or transaction occurred while the employee was in fact performing a specific jobrelated service for the employer, and but for the employee's wrongdoing, the service would otherwise have been within the authorized scope of his employment." ⁵⁴⁸ In addition to the job-related-service principle, the Parker court recognized the external, independent, and personal motives inquiry stating that vicarious "liability cannot extend to an employer for an unauthorized tortious act by an employee arising 'wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.'" ⁵⁴⁹ The Parker court concluded that plaintiff plead a rebuttable presumption that the tortious acts were committed in the scope of employment and, contrary to employer's argument, did not plead additional facts which clearly overcame this presumption at the demurrer stage. ⁵⁵⁰

The Virginia Supreme Court addressed respondeat superior and vicarious liability again in Our Lady of Peace, Inc. v. Morgan ⁵⁵¹ when it reiterated its findings in Parker but focused on the court's inquiry into the employee's motive when that court considers whether an employer is liable for

[Page 530]

its employee's actions through respondeat superior. ⁵⁵² The court reemphasized "a nuance in the respondeat superior doctrine" that an "employee's motive can be determinative in cases where the bad motive is accompanied by a 'deviation from the employer's business' that is 'marked and unusual' as opposed to 'slight.'" ⁵⁵³ The court recognized that there may be some "outlier scenarios" on both ends of this spectrum wherein the variable of motive, when considered in tandem with the conduct, could be so decisive that the issue of whether an employee is acting in the scope of their employment may be decided by a trial court rather than a jury. ⁵⁵⁴ However, the Our Lady of Peace court found that this was not such a case and that the trial court erred when it barred the defendant employer from presenting any evidence at trial suggesting that its employee had acted outside the scope of his employment and when it instructed the jury that the issue "was not their concern." ⁵⁵⁵ Accordingly, the court reversed and remanded the case for further proceedings. ⁵⁵⁶

Importantly, the plaintiff need not name the employee as a defendant in the claim against the employer under the theory of respondeat superior. ⁵⁵⁷ Further, a claim against an employer is not barred where a suit against the employee relating to the same conduct is dismissed on procedural grounds if that dismissal does not decide the issue of the employee's negligence. ⁵⁵⁸

11.603 Negligent Hiring or Retention. In a negligent hiring case, an employer's liability to other employees or to third parties is premised on

[Page 531]

an employer's failure to exercise reasonable care in placing an individual with known propensities, or propensities that should have been discovered by reasonable investigation, in an employment position in which, due to the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others. ⁵⁵⁹

However, "a party is not charged with foreseeing that which could not be expected to happen." ⁵⁶⁰ Rather, an employer is liable for the consequences of an act when "an ordinary, prudent person ought, under the circumstances, to have foreseen that an injury might probably (not possibly) result from the negligent act." ⁵⁶¹ "The test is whether the employer has negligently placed 'an unfit person in an employment situation involving an unreasonable risk of harm to others.'" ⁵⁶² In the end, "the plaintiff must show that an employee's propensity to cause injury to others was either known or should have been discovered by reasonable investigation." ⁵⁶³

In Davis, ⁵⁶⁴ although not officially recognizing the tort of negligent hiring or retention, the court did comment that the railroad's negligent rehiring and retention of this employee who had previously been dismissed for intoxication was causally related to the injury of the decedent. The court's

[Page 532]

discussion focused on the employer's knowledge that the employee had tendencies that could pose a threat to others. ⁵⁶⁵

Earlier cases had generally discussed an employer's duty to exercise care in choosing employees, ⁵⁶⁶ but the Virginia Supreme Court first recognized the tort of negligent hiring in J. v. Victory Tabernacle Baptist Church. ⁵⁶⁷ In that case, a church employee had raped the young daughter of a parishioner. The employee had recently been convicted of aggravated sexual assault against a young girl, was still on probation for that crime, and was forbidden to have contact with children.

The Virginia Supreme Court definitively recognized and set the standard for negligent retention in Southeast Apartments Management, Inc. v. Jackman. ⁵⁶⁸ In Jackman, the issue was whether the apartment management company should have known that the employee would break into an apartment in the middle of the night and assault a tenant. The plaintiff had pled both negligent hiring and negligent retention. The court addressed the separate torts of negligent hiring and negligent retention but reversed the trial court's award of damages because it found that the employer had made reasonable inquiries about the worker's background that had not revealed any problem. ⁵⁶⁹ The court explained that liability attaches on a claim of wrongful retention when an employer gains negative knowledge about an employee but fails to act on that information and negligently retains the offending employee. ⁵⁷⁰

The difference between a negligent hiring claim and a negligent retention claim "is the timing of the employer's actual or imputed awareness

[Page 533]

of the possibility of dangerous behavior by the employee." ⁵⁷¹ In order to state either claim, a plaintiff must allege more than a propensity for bad acts by the offending employee but must allege specific acts or facts that "if true, alerted or should have alerted a reasonable employer that the employee posed a threat." ⁵⁷² Specifically, "negligent retention requires an amplified showing that both the nature and gravity of the risk render unreasonable any mitigating response...