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San Diego Jury finds Employer Liable for Negligence of Employee who was Off-the-Clock

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San Diego Jury finds Employer Liable for Negligence of Employee who was Off-the-Clock

Vicariously liable, or are you?  California jury finds restaurant vicariously liable for acts of employee who was off the clock at the time of accident.

 “Under the respondeat superior doctrine, an employer may be vicariously liable for torts committed by an employee. The rule is based on the policy that losses caused by the torts of employees, which as a practical matter are certain to occur in the conduct of the employer’s enterprise, should be placed on the enterprise as a cost of doing business.”  (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280)

The basic test for vicarious liability of an employer is whether the employee’s tort was committed within the scope of employment (a “tort” is broadly defined as a civil wrong for which the law provides a remedy). Determining exactly what constitutes conduct “within the scope of employment” is a difficult task and the subject of numerous judicially developed rules and guidelines.

In February 2016, a San Diego jury found “On the Border” Restaurant in San Diego, California vicariously liable for the acts of its employee, who was working off-the-clock at the time he injured the plaintiff.  A San Diego jury handed the well-established Mexican restaurant a $1.5 million verdict following trial.  The lawsuit was filed after an employee, who was off the clock, hit and injured, Kai-Yen Cheng, a Taiwanese exchange student who was skateboarding at the time of the incident, with his vehicle. The restaurant employee, Vincent Quintanilla, slammed into Cheng, who was skating in a road bike lane at approximately 12:20 a.m. Quintanilla drove off, leaving Cheng, who had suffered a broken leg, deep lacerations and scrapes, in the road.  Officers eventually tracked Quintanilla down, and he pleaded guilty to felony hit-and-run driving.

According to the lawsuit, the restaurant’s negligence was in allowing the employee to drink, and become intoxicated, at the restaurant after his shift had ended.  Cheng’s attorney argued Quintanilla negligently consumed alcohol in the course and scope of his employment.  He contended the restaurant was responsible because it regularly allowed its employees to drink after work, and their purchases benefit the restaurant monetarily.

The jury found that the employee, who was off the clock at the time, had been acting “within the scope of his employment” while drinking at the Mexican-food restaurant with fellow coworkers, who were also off the clock.  The defendant, and his co-workers, were celebrating his birthday.  The celebration lasted nearly three hours.

If this matter survives appeal, it could have ramifications on the course of business and further, on insurance policies provided to employers.  If the jury’s verdict is upheld, there would be new precedent for what “course and scope” of employment means.

If you have further questions regarding the doctrine of Respondent Superior (vicarious liability), contact Mona Tashroudian of Tashroudian Law Group, APC at mona@tashlawgroup.com or (818) 561-7381.

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