Employer Liability for Intentional Tortious Acts

Previously, we discussed the potential liability for bouncers and security guards in reference to negligence and intentional torts.   It may be worthwhile to discuss the practical implications of a potential lawsuit against a bouncer or security guard for tortious behavior.

Since many folks with jobs in security do not have a large amount of wealth, even if you were to sue and win, there would be little-to-no money available to you to cover the damages suffered (in the biz, they call this “judgement proof”).  In turn, many will prefer to sue the employer of the security guard or bouncer, as the employer almost always has more of a cash flow.  The issue of holding an employer liable for the actions of the employee is a complicated one, with case law in Nevada going back to 1945.

 

Is There Employer Liability?

In 1997, the Nevada Legislature codified the Nevada case law to improve the clarity as to if and when an employer (as a respondeat superior) would be held liable for the intentional act of an employee.

      NRS41.745  Liability of employer for intentional conduct of employee; limitations.

      1.  An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:

      (a) Was a truly independent venture of the employee;

      (b) Was not committed in the course of the very task assigned to the employee; and

      (c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment.  For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.

 

Each of these elements needs to be unpacked for us to have a better understanding of if an employer will be held liable for his or her employee’s actions.

 

Independent Venture

The employer will not be held liable for the employee’s actions if the employee is not acting to improve the standing of his or her employer.  For example, if the security guard discussed above were to pick a fight with a patron because of something the patron said, this likely could not be construed as furthering the interests of his or her employer.

 

Course of Employment

The second element questions if the harm occurred while the employee was in the course of employment on behalf of the employer.  Removing a patron from a bar while on the clock is within the course of employment; if the same employee were to follow that patron to his or her car (off the clock) and a confrontation ensued, that may not be in the course of employment.

 

Reasonable Foreseeability

The last prong asks if the employer could reasonably foresee that the employee in question would act unreasonably.  Many employers do background checks and training to insure against this possibility, as it would be difficult to foresee that a well-trained person with no criminal record would commit a tortious act.  However, it is not unreasonable to foresee that a security guard authorized to use force may go beyond the legal limit.  The determination of foreseeability will likely come down to an analysis of the specific facts of the incident.

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