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Friday, December 18, 2009

Are you Authorized?

There is an interesting disparity between Workers Compensation and Personal Injury when it comes to the "authorized actions of an individual."

Legal speaking, "Authorized activity" refers to the actions of an employee for which the corporation has specifically given authority. A greeter at Wal-Mart has been authorized by the company to say hello and wear a blue vest. They may even be authorized to help someone find an item in the store. Are they authorized to drive a Wal-Mart truck? probably not.

What happens then when a Wal-Mart greeter having no truck driving experience decides to take an 18-wheeler around the block and causes an accident injuring the Wal-Mart greeter, another Wal-Mart employee and person on the street. Who can recover what?

The Wal-Mart greeter can get Workers' Compensation benefits if it can be shown that the decision to drive the truck was made to benefit the company and somehow there was a benefit to the company. The Wal-Mart greeter caused the accident and may get compensated!

The other Wal-Mart employee is entitled to Workers' Compensation as well. They may have a civil claim against the truck owner if it can be shown the truck owner was negligent in leaving the vehicle unattended or was negligent in lending the truck to the Wal-Mart employee. If Wal-Mart owns the truck though, there is no claim against the truck owner.

The person on the street may be the worst off though. They have no right to Workers' Compensation because there is no employee/employment relationship. So now they have to sue the Wal-Mart greeter and Wal-Mart and the truck owner.

I used a Wal-Mart greeter in this example as someone with clear liability for their actions but likely no ability to pay. Suing the Wal-Mart greeter will get you a judgement but no money in the end.

Suing Wal-Mart and the truck owner is a great idea. On a negligence claim, the case will hinge on the central issue of, authority. Did the Wal-Mart greeter have authority to drive the truck. Wal-Mart will certainly argue that the Greeter's job was to stand at the door and say hello and driving the truck was "outside their authority." Therefore Wal-Mart has no liability on a negligence theory because Wal-Mart was not negligent, the Greeter was beyond their authority.

There are other claims which could be made against Wal-Mart and the truck owner that may succeed. In California it is a negligent act to leave your keys in your car when it is unattended. If this is the case, there is a reasonable claim against Wal-Mart or the truck owner. There is claims like negligent entrustment, did the truck keys someone get in the hands of the Greeter inappropriately. Perhaps the Wal-Mart greeter asked to drive the truck and the keys were given to the greeter negligently.

What's the point here?

- If you are a person injured by a business' vehicle it is important that your lawyer examine all options for recovery against that business. If you only plead basic negligence claims, you may lose your case on a Motion for Summary Judgment before there is an opportunity to get to a jury.
- A business owner should always be aware of what the actual authority of their employees are and to make sure the employees are staying with in the scope of their authority. Tacit acceptance of employees exceeding their authority will lead to serious problems in the future.
- A good lawyer will investigate issues like the authority of an employees business. There are many kinds of authority: actual, implied, imputed, tacit, ratified. Any one of them may yield a positive result in the discussion above. Make sure your lawyer is competent in discussing authority in an employee/employer relationship.

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