Wednesday, February 11, 2015

Recent Illinois case clarifies the extent of vicarious liability, kind of...

As you probably know, the principle of vicarious liability allows a plaintiff to recover compensation from an employer for the conduct of an employee, but only if the conduct of the employee is "within the scope of employment."  For this reason, there is a lot of case law out there attempting to explain how to determine if a certain act is within the scope of employment and the case law is not always consistent.  Also, some courts have a tendency to define the scope of employment too narrowly, thus allowing employers to escape liability.

Now comes a decision from the Illinois Appellate court that adds to the confusion.  In this case, called Dennis v. Pace,  the plaintiff alleged that after becoming intoxicated she passed out while riding a Pace bus, and that, rather than calling for help or notifying his supervisor, the driver took her home at the end of his shift and sexually assaulted her.  She then sued Pace Suburban Bus Service. 

The lower court dismissed the complaint finding that vicarious liability did not extend to a sexual assault that occurs after work at an employee’s home.  However, the appellate court reversed concluding that the plaintiff could support the claim because the driver “initiated the sexual assault when plaintiff was riding on the bus at a time when she was a passenger and the common carrier and passenger relationship existed.”  This seems to suggest that the court was willing to define "within the scope of employment" more broadly to include conduct committed outside business hours and away from the work place as long as the conduct was initiated within business hours and within the workplace (thus being "within the scope of employment").

And I would agree with that application of the general principles to the facts.  However, although it reaches the correct result, the court's decision is not based on what can or cannot be considered to be "within the scope of employment."

The court's decision is based on an interpretation of case law in the state that appears to hold that vicarious liability rules are different in cases where the defendant is a common carrier.  According to the court, the law in Illinois has long held that a common carrier can be liable for the intentional acts of its employees even if the intentional act is outside the employee’s scope of employment and does not benefit the employer.

This is a strange result because it suggests that common carriers have strict liability over injuries caused by their employees, something I don't think is supported by the cases, particularly since the reasoning seems to be combining the principles of vicarious liability (for an employees conduct) and the high degree of care expected of a common carrier (for its own conduct).

I wonder if the case will be appealed to the state supreme court.  Stay tuned.

Kentucky Senate approves bill creating panels to review medical malpractice cases before they go to court

The Kentucky Senate recently approved a bill creating three-member panels to review medical malpractice claims before they can go to court. The Senate has passed this bill before, but it has not passed in the House, which is a good thing because the proposal is a horrible idea!  For malpractice victims in Kentucky's sake, let's hope the bill dies again.  The TortsProf blog has more on the story here.

The bill would create a three-member panel of medical experts to review claims of medical malpractice before a lawsuit can be brought to court. The bill’s supporters claim Kentucky’s lack of such a law is driving physicians out of state and driving up medical costs.  Multiple studies over the years, however, have demonstrated that these allegations are not supported by the evidence.  Lacking that evidence, the senator who sponsored the bill (a physician himself) has been quoted that the argument for the bill is “common-sense logic.”  I don't know about you, but I would rather base my vote on actual evidence than "common sense logic" claimed by someone who stands to benefit personally from the passing of the bill.

Short article that reminds us of what we already knew (if you have been paying attention)

Anyone who reads this blog knows my position on "tort reform."  It is directed at eliminating the right of people to have a chance to recover for injuries.  It is an attempt to either eliminate the chance to recover or to limit how much people can recover for no justifiable reason.  And, more than anything, it is not meant to eliminate frivolous litigation but valid claims.  Those are the ones that tort reformers really want to get rid of.  In short, tort reform is a load of crap designed to hurt victims of accidents and it disproportionately hurts women, the poor and the elderly.

Today, Joanne Doroshow, who has written extensively on the subject, published a short comment on the issue here.  It starts as follows,
For years, Big Business lobby groups like the U.S. Chamber of Commerce have been advancing a legislative agenda to limit the liability of corporations that cause injuries (also known as "tort reform.") One of their principal arguments is that tort restrictions are needed to save jobs, and to allow small businesses, "the engines of job growth," to survive. Yet internal business surveys have consistently shown this view to be utterly groundless. For years, liability issues have hardly appeared on lists of actual business concerns (as opposed to views expressed by paid lobbyists and other hired staff.) Small businesses virtually always put issues like "lawsuits" "liability" "tort reform" or the cost of "liability insurance" at the bottom of any list of concerns -- that is, if they mention them at all. They usually don't.
Go here to read the full article.