QUESTION:

After spilling a drink, my son was taken to the back steps used for staff and delivery and was given a “shove” down the stairs as he was being escorted by the bouncers out of the bar. His friends were at the exit waiting for him and didn’t see the push or the fall. Is the bar responsible for damages and the cost of my son’s treatment for the injuries caused by the bouncers?

ANSWER:

Under the doctrine of “respondeat superior,” an employer may be liable for an employee’s tortious acts committed within the scope of the employment. Respondeat superior 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.

Whether an employee’s wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”:

• Whether the act was either required by the employer or “incidental” to the employee’s duties (“nexus” test); or

• Whether the employee’s misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”).

If the employee’s conduct meets either test, the employer is vicariously liable even though the employee acted maliciously and/or intentionally.

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.

CC § 3294 reflects a public policy determination that certain conduct—“oppression, fraud or malice”—is so reprehensible that a penalty should be exacted to deter the commission of similar wrongful acts. Thus, “punitive” or “exemplary” damages are awarded purely as punishment and “by way of example.” A fortiori, regardless of the actual damages, plaintiff’s entitlement to punitive damages is never a matter of right. [Neal v. Farmers Ins. Exch. (1978)]. It is important to note that the jury has full discretion to grant or deny such award.

A lawyer who is an expert in personal injury cases could provide more information and proper guidance on how to go about pursuing such cases, that’s why it is best to work with one.