My last column addressed the legal theory called respondeat superior, or “let the master answer.” As discussed, if an employee injures someone (or something) during the course and scope of his or her employment, under the respondeat superior doctrine, the employer could be held vicariously liable for the employee’s conduct. This week’s column looks at some examples of the type of conduct that Idaho courts have said falls within an employee’s “course and scope of employment”.
Idaho appellate courts have ruled in at least three separate cases that involved an injury caused by an employee during work hours as a result of “horseplay” or “skylarking” as one court phrased it. In the earliest of the three cases, Scrivner v. Boise Payette Lumber Co., 268 P. 19 (1928), the Idaho Supreme Court held that, if a night watchman who accidentally shot and killed a man while on duty did so while engaging with the deceased in a “pretend” confrontation, then such horseplay would not be considered as being within the course and scope of his employment.
In Claris v. Oregon Short Line R.R. Co., 51 P.2d 217 (1935), however, the Idaho Supreme Court held that a supervisor who loaded an employee’s grease gun with water as a joke and then directed the employee to use it, was within the course and scope of his supervisory employment and the employer could be held liable for the loss of the injured employee’s left eye. In that case, the court reasoned that supplying the injured employee with a grease gun and directing him to use it were actions done in furtherance of the employer’s business. Unlike the Scrivner case, the court did not find that the supervisor’s attempt to play a joke on the employee was a sufficient deviation from performance of his regular duties to prevent the employer from being held accountable.
In Rausch v. Pocatello Lumber Company, 14 P.3d 1074 (2000), the Idaho Court of Appeals held that, because an employee’s job description did not include horsing around or joking with contract carpet installers such as Mr. Rausch, the employer was not liable for the injuries Mr. Rausch sustained when the employee pulled a chair out from underneath Mr. Rausch just as he was preparing to sit on it. (The Court of Appeals did, however, rule that the employer might nevertheless be held directly liable to Mr. Rausch for negligently supervising the prankster employee because the employer knew that the employee had a history of such conduct and did nothing to stop it.)
Other Idaho examples of an employer being deemed vicariously liable for injury caused by its employee’s conduct include Manion V. Waybright, 86 P.2d 181 (1938) (employer liable for the vehicular death of a passenger riding with an employee who ran off the road while driving to Spokane at night, even though the employee, who was returning from a business trip to Kellogg, did not need to return to Spokane for his employment until the next morning); and Van Vranken v. Fence-Craft, 430 P.2d 488 (1967) (employer liable for injury-causing accident even though employee was traveling on a mixed business and personal errands trip from Weippe to Lewiston and was engaged in a wholly personal errand at the time of the accident).
So, apart from referring all would-be-comedian job applicants to Pranksters-R-Us, what’s a business owner to do? Have a clear policy regarding employee safety and discouraging horseplay during work hours. If you allow employees to mix personal business with conducting your business, make sure you’re properly insured if something goes awry. If such insurance coverage is cost-prohibitive, then institute a company policy that clearly prohibits such conduct. And, as with all well-intentioned policies, make sure the policies are enforced.
Molly O’Leary represents business and telecommunications clients throughout Idaho, and is a managing member of Richardson & O’Leary, PLLC, in Boise (www.richardsonandoleary.com). In addition, Ms. O’Leary serves as a commissioner on the Idaho State Bar Board of Commissioners, and on the statewide advisory council for the Idaho Small Business Development Center. You may follow her on Twitter: @BizCounselor.