Confusing Theories of Liability: Negligent Driving and Negligent Employment
Florida plaintiffs are pressing for the extinction of vicarious liability against employers for their employees' negligence. The plaintiffs are not trying to give employers a free pass. They seek to impose additional liability upon them for their employees' conduct and present prejudicial evidence to the jury.
July 20, 2020 at 09:12 AM
7 minute read
Florida plaintiffs are pressing for the extinction of vicarious liability against employers for their employees' negligence. The plaintiffs are not trying to give employers a free pass. They seek to impose additional liability upon them for their employees' conduct and present prejudicial evidence to the jury. When they sue, some plaintiffs are skipping claims for vicarious liability altogether. Instead, they opt for claims for direct negligence, such as for negligent hiring, training, retention, supervision and entrustment. Their goal is to open up discovery on the employers' operational details, hoping to weave a web of "institutional wrongdoing." Even if immaterial to the actual accident, this can lead to "reptile"-style narratives, causing juries to render verdicts out of fear for their safety.
This trend is particularly troublesome because it violates basic principles of tort law and has successfully led to many nuclear verdicts. This is particularly true in claims against motor carriers and commercial drivers, the very people keeping the country moving.
This issue requires revisiting Tort Law 101. Tort liability based on conduct. In its simplest form, tort law imposes financial consequences (liability) upon a party who harms another (fault). If Tom Driver negligently operates his vehicle and crashes into Paul Plaintiff, our courts will hold Driver financially responsible for Paul's injuries. Driver's conduct created his liability and caused Paul's injuries. This makes sense.
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