I was injured by a store associate. Can I sue the store company?


An employer may be liable for an employee’s (or “ostensible employee’s”) tortious acts committed within the scope of the employment. This is under the doctrine of respondent superior  which imposes vicarious (or derivative liability) upon the employer—i.e., it imputes the employee’s fault to the employer and thus makes the employer responsible in damages just as if he or she personally committed the tortious act.  Under respondeat superior, the employer is clearly liable for compensatory damages resulting from the employee’s acts. But, depending on the facts, there may also be a basis for imposing punitive damages under CC § 3294.

Respondeat superior is therefore a form of strict liability: The employer is responsible for the employee’s wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct [Hinman v. Westinghouse Elec. Co. (1970)]. By the same token, because respondeat superior liability is derivative in nature, the employer may raise all defenses that the employee could raise and cannot be assessed damages (on that theory) greater than the amount for which the employee is liable [Lathrop v. Healthcare Partners Med. Group (2004)].

Plaintiff must first show the tortfeasor was actually employed by defendant, or that he or she was an “ostensible employee” at the time of the wrongful act or omission [Asplund v. Selected Investments in Fin’l Equities, Inc. (2000)]. Plaintiff also bears the burden of proving the tortious act was committed within the course and scope of the employment [Mary M. v. City of Los Angeles (1991)].

It is best to consult with a lawyer who is an expert in personal injury cases to learn more about employers’ liabilities for the acts of their employees.

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