Let's say you are looking to buy a car and go to a dealership. While there, you go with a sales rep and test drive several cars. After testing out a new beamer, the sales rep asks you to step out of the car and help direct him back into theparking spot. While the sales rep is backing up the car, he accidently hits the gas rather than the break and runs over your foot. You're rushed to the ER with a broken foot and have to get emergency surgery. Now, you have to miss work for weeks while you heal. Let's not even talk about the sky high medical bills you've accumulated.
A question that may run across your mind is: Who is liable for my injuries, the sales rep or his employer? The answer to this question rests in a legal doctrine known as respondeat superior (meaning ""let the master answer" in Latin). This doctrine holds that an employer is liable for the torts committed by an employee if the employee was acting within the course and scope of his employment.
So, to prove up a claim based on as respondeat superior, you have to show two things: First, you have to show that the person was actually an employee and not an independent contractor. Second, you have to show that the employee was acting within the course and scope of his employment. When the court is presented with the question of whether someone is an employee or an independent contractor, the court will consider an array of factors, including but not limited to:
1. The length of the employment,
2. The amount of control the employer has over the person,
3. Whether the employer is in business at all,
4. The level of skill and expertise the person has,
5. How and when the person is paid, and
6. The terms used (although this is the least important factor).
In the case of our car salesman, the court would look at the fact that he's been working at the dealership for a few years now and the employer has control over how the sales are conducted. Additionally, the court would see that the employer is in the business of selling cars, the salesman doesn't have any special skills or expertise, is on a salary and is referred to as an employee. With all these factors, the court would conclude that the salesman is an employee rather than an independent contractor.
In terms of the second part of the test, the court would need to determine if the employee was acting within the course and scope of his employment or if he was on what we would refer to as a "frolic." What the court looks at here is whether the employee was performing an act he was hired to perform. In our example, the salesman was clearly acting within the course and scope of his employment by virtue of the fact that he was hired to sell cars, and that was precisely what he was trying to do.
Since we have met both elements of the test, what the means is that the employer would be liable for his employee's negligence. Now, that doesn't mean the employee is off the hook. Simply because you bring a cause of action against the employer does not preclude you from also bringing suit against the employee.