Fighting Water With Fire
Q: In a restaurant known for its spirited atmosphere, I accidentally spilled water on a firefighter. So she picked me two-feet off the floor, made like to strangle me and threw me over the banister. The firefighter and some coworkers had arrived at the restaurant straight from a Fire Department annual dinner held at another location. They had continued to celebrate and drink near my table.
A: The City, as an employer, is vicariously liable for torts committed by its employees acting within the scope of their employment. So long as the tortious conduct is generally foreseeable and a natural incident of the employment, the City may be liable, no matter whether the act is negligent or intentional. There are a number of tests for determining whether an employee’s conduct falls within the scope of employment. The strictest is whether the purpose in performing the action is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business. Another is whether the act was performed while the employee was engaged generally in the business of the employer, or may be reasonably said to be incidental to such employment. From what you tell me, I am inclined to think that a court is likely to rule that this firefighter was not performing within the scope of her employment. Your strongest case might be for negligent hiring, supervision, training and/or retention. This firefighter has a propensity for assaultive conduct. Your theory would be that the City knew or should have known of this propensity. Even with such a theory, you will have a challenge in proving that the City’s negligence with respect to this firefighter was the proximate cause of your injuries. You will need to defeat the argument of the City that any connection between her employment and her conduct toward you was severed by time, distance and various intervening independent events.).
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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