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Direct and Vicarious Liability In Tennessee – Can Employers Be Held Liable for Both?

child-s-play-1309509-1279x1705When an employee causes an injury to another person while acting within the scope of his or her employment, many times an employer can also be held liable for such injuries under the idea of vicarious liability.  Thus, when a bus driver is in an accident while performing the duties of his job, a bus company, or the employer who hired the driver, may also be responsible for the driver’s negligent actions because they occurred on the job. At the same time, employers may be directly responsible for injuries caused by an employee when they fail to correctly train an employee, or are negligent in their hiring of the employee and overlook red flags that should have been addressed.  A recent case in the Tennessee Court of Appeals addresses a novel question before the Tennessee courts:  can employers be both vicariously liable for injuries caused by their employees and directly liable for those injuries as well? Jones v. Windham et al. suggests that they can.

In Jones v. Windham, et al., Ms. Windham was driving a vehicle for a daycare when she struck and killed a child.  Shortly thereafter, the mother sued Ms. Windham and her employers. The mother claimed that the employers were vicariously liable for Ms. Windham’s actions because they occurred in the course of her employment, and that they were directly liable because they themselves were negligent in their hiring of Ms. Windham and their retention of her.  In their answer, the employers conceded that, to the extent Ms. Windham was negligent, they were vicariously liable for such negligence as her employers. They then moved for summary judgment on the direct liability claims, arguing that if they were found vicariously liable for the child’s death, they could not also be directly liable.  The mother disagreed, arguing that her two claims were based on different theories of liability and different actions by the employers.  The trial court sided with the employers and dismissed the direct liability claims.

The Tennessee Court of Appeals granted the mother a special appeal to consider the question of whether Tennessee law allowed employers to be held both directly liable for negligent hiring and retention and vicariously liable for the acts of employees, a question never before considered by the Tennessee courts. The court noted that there were two prevailing approaches to this issue:  the preemption rule and the non-preemption rule.  Under the preemption rule, an employer’s admission of vicarious liability preempts any claims of direct liability against the employer and prevents such claims from moving forward. The primary justification for the preemption rule is that claims of direct liability for negligent hiring are often used to attempt to bring into evidence “bad facts” about an employee that may color the jury’s perception of the employee. Moreover, once an employer admits vicarious liability, there are often no additional damages to be obtained through direct liability claims.

Conversely, under the nonpreemption rule, a claim of vicarious liability does not preempt a claim of direct liability because the two claims are based on independent legal theories and, often, on independent sets of facts. As in this case, an employer’s failure to adequately investigate an employee’s background is a theory of liability based on the employer’s own acts, rather than the employer-employee relationship.

The Tennessee Court of Appeals determined that the nonpreemption rule should apply in Tennessee because Tennessee is a comparative fault state, rather than a contributory negligence state. In contributory negligence states, a defendant is either completely at fault for an accident, or not at fault. Conversely, under comparative fault, multiple individuals or entities may be at fault for an accident. As long as the plaintiff’s fault is less than that of other tortfeasors, including the defendants, the defendants may still be liable. Thus, under this system, it would make sense to allow claims against an employer for the actions of the employee and for the employer’s actions themselves.

If you have recently been the victim of an accident or crash and believe the offender was “on the clock” at the time of the accident, knowledgeable auto accident attorney Eric Beasley can help you in determining whether you have both direct and vicarious liability claims against an employer. For more information or to discuss the circumstances of your case, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Government Liability in Tennessee for Automobile Accidents Involving Police Officers, Tennessee Personal Injury Blog, April 13, 2016.

Can Tennessee Emergency Vehicles Be Held Liable for Accidents That Occur While On Emergency Calls?, Tennessee Personal Injury Blog, February 10, 2016

Tennessee Courts Find Presumption of Comparative Fault for Drivers Running a Light, Tennessee Personal Injury Blog, January 6, 2016