Changes in Delaware at the Intersection of Workers’ Compensations and Liability

/in /by Changes in Delaware at the Intersection of Workers’ Compensations and Liability

A recent amendment to Delaware law allows an employee to seek uninsured and/or underinsured motorist coverage from an employer’s insurance policy if he or she was injured in the course and scope of employment in a motor vehicle accident with a third-party tortfeasor.

Prior to September 2016, an employee was precluded from collecting uninsured and/or underinsured motorist benefits under his employer’s policy because he/she could only recover workers compensation benefits “to the exclusion of all other rights and remedies.” 19 Del. C. § 2304. Simpson v. State, 2016 WL 425010.

In September 2016, the Delaware State Legislature passed House Bill 308 as a response to the Delaware Superior Court decision in Simpson v. State of Delaware and Government Employees Insurance Company, 2016 WL 425010 (Del. Super. Ct. Jan. 28, 2016).

HB 308, which took effect immediately, expressly excluded uninsured motorist benefits and underinsured motorist benefits from the workers’ compensation exclusivity rule thus allowing employees injured in an automobile accident with an uninsured or underinsured tortfeasor to collect from their employer’s workers’ compensation insurance policy as well as the employer’s UM/UIM insurance policy.

For more information about this article, please contact Krista Shevlin at 302.594.9780 or kshevlin@fandpnet.com.

Fox v. Mize: A Bad Case for the Future of Direct Negligence Claims Against Motor Carriers

/in /by Fox v. Mize: A Bad Case for the Future of Direct Negligence Claims Against Motor Carriers

It is well established that direct negligence actions against a motor carrier are the most effective method for plaintiffs to increase exposure in law suits arising out of motor vehicle accidents involving commercial vehicles. A simple motor tort case can be transformed into an outright indictment of a motor carrier’s entire safety program. Plaintiffs use direct negligence claims to draw attention away from the simple question of driver error and heap it onto the far more sinister business of motor carrier malfeasance. They endeavor to demonstrate that the motor carrier failed to adhere to appropriate safety practices and procedures, compliance with which could have prevented the driver from being on the road in the first place. The direct negligence claims against the motor carrier are also the perfect vehicle for the reptile theory presentation.

Assuming there is a halfway decent factual predicate to support these direct negligence claims against motor carriers, the effectiveness of this approach has been proven by many recent significant verdicts in favor of plaintiffs. Most notable amongst these “nuclear” verdicts was the largest verdict awarded in the history of trucking litigation by a Gilmer, Texas, jury against FTS International in July, 2018 in the case of Patterson v. FTSI, LLC. In Patterson, the jury awarded $101 million dollars against the motor carrier, of which approximately $75 million was for punitive damages, for negligent hiring and retention following a truck accident. The factual predicate in Patterson involved a driver who had received three traffic violations in the preceding three years where company policy made drivers ineligible for continued employment if a driver had received three moving violations within that time period, the driver’s admitted use of methamphetamine and marijuana, and the driver having signed documents attesting to safety training that he never actually received.

One of the only strategies available to and used by motor carrier defendants to counter direct negligence claims is to admit agency, and sometimes even simple negligence, relying upon state law to preclude the direct negligence claims and the associated evidence. However, depending on the applicable standard on a state-by-state basis, a claim for punitive damages can often trump this defense strategy and revive the specter of direct negligence. A recent decision in the case of Fox v. Mize, 2018 Ok, 75 from the State of Oklahoma has further jeopardized motor carriers’ ability to employ this counter strategy. In Fox, the Supreme Court of Oklahoma affirmed the trial court’s denial of the motor carrier’s motion to dismiss a negligent entrustment claim where the motor carrier had stipulated to agency, ruling that “an employer’s liability for negligently entrusting a vehicle to an unfit employee was a separate and distinct theory of liability from that of an employer’s liability under the respondeat superior doctrine. An employer’s stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim.”

The factual predicate in Fox involved a Class A commercial driver whose post-accident drug test revealed that he was taking a lawfully prescribed prescription narcotic that was banned by the FMCSR. The plaintiff, the adverse driver’s estate, filed a law suit, including direct negligence claims against the motor carrier for negligent hiring, training, and supervision and negligent entrustment. The defendant motor carrier stipulated that the subject accident occurred within the course and scope of the driver’s employment and filed a motion to dismiss the direct negligence claims on the basis that it was unnecessary, superfluous, and contrary to public policy in light of the admission as to agency. The trial court granted the motion as to the negligent hiring, training, and supervision claim but denied the claim of negligent entrustment. The defense argued that allowing the claims to proceed simultaneously would unfairly prejudice the defendant driver by allowing prejudicial evidence of his prior bad acts that would normally be excluded if it was just a simple negligence action against him. The court rejected that argument, concluding that motor carriers “employing unfit and unqualified drivers cannot insulate themselves from a negligent entrustment claim simply by stipulating that the employee driver was acting in the course and scope of employment. The Plaintiff has the right to determine the facts she will allege and the claims she will pursue. [The motor carrier] does not get to make that choice for her by stipulating that its employee was in the course and scope of employment at the time of the accident.”

The Fox decision was published on a direct appeal of the trial court’s ruling on the Motion to Dismiss which, in hindsight, may have been a premature strategy by the defendant. Either way, the Fox decision could serve to jeopardize one of the only defense strategies available to motor carriers in avoiding direct negligence claims and the introduction of associated prejudicial evidence that tends to lead to nuclear verdicts against them.

For more information about this article, please contact Andrew Stephenson at 410.230.3638 or astephenson@fandpnet.com.

Autonomous Vehicles and the Commercial Transportation Industry

/in /by Autonomous Vehicles and the Commercial Transportation Industry

The age of traditional forms of trucking transportation may be coming to an end with the development of autonomous trucks. Companies are infiltrating the commercial transportation industry by introducing software and vehicles that are completely autonomous and do not require a human behind the wheel, or even inside the vehicle at all, begging the question as to how these advancements will affect the commercial transportation industry.

Naturally, the biggest potential effect is how autonomous trucks will factor in determining liability for accidents involving these vehicles. In addition to theories of pure negligence, theories of manufacturing and/or design defects in the autonomous trucks may become more commonplace in lieu of derivative claims of negligence such as negligent hiring and retention. Such a strategy could significantly alter the manner that these cases are litigated, as well as increase litigation costs. Moreover, there is a natural difficulty for a company to defend a pure negligence claim if there is no driver or human in the vehicle.

Outside of the potential effect on litigation, the transportation industry faces practical concerns with autonomous vehicles. Naturally, the first is the cost associated with these autonomous vehicles, particularly in light of the fact that such vehicles are an unknown quantity. There would need to be safeguards such as enhanced monitoring systems and cameras depicting the road from multiple angles. However, these increased costs would be counteracted by reducing the need for commercial drivers and the costs associated with said drivers.

The second consideration is the effect that autonomous (or partially autonomous) vehicles will have on the area of driver restrictions. Indeed, some vehicles, although autonomous, do require individuals to be present in the vehicle while it is operating. Federal regulations will need to evolve to address this gray area and provide the transportation industry with clarity so that companies can make an informed decision. For example, the federal regulations will need to clarify whether the current set of rules regarding driver hours and licensure apply for autonomous vehicles with an individual present in the vehicle or whether a new body of regulations will arise.

One thing is clear with the introduction of autonomous trucks; they are approaching rapidly and transportation companies, and the regulations for the industry, will need to quickly evolve to address this new development.

For more information about this article, please contact Landon Moyer at 571.612.5950 or lmoyer@fandpnet.com.

New CMV Safety Technology and Regulation

/in /by New CMV Safety Technology and Regulation

Safety and security initiatives are at the forefront of the Federal Motor Carrier Safety Administration’s rulemaking initiatives. However, the Department of Transportation has placed a number of regulations for commercial motor vehicles aimed at safety on hold for what seems to be an undetermined period of time. These delays in implementation have followed President Donald Trump’s directive that for every new regulation imposed, two existing regulations must be removed. Below is a look at a few of the most recent updates, and stalls, related to safety regulations.

Underride Guards

The Insurance Institute for Highway Safety (IIHS) estimates that underride occurs in approximately 50% of fatal crashes between commercial motor vehicles and passenger vehicles. According to the National Highway Traffic Safety Administration, between the years 1994 and 2004, 4,006 people died from an accident resulting in underride with a commercial motor vehicle.

Currently, federal law requires large commercial motor vehicles to have rear underride guards but not side guards. Studies conducted by the IIHS suggest that strong side underride guards have the potential to reduce the risk of injury in approximately 75% of side impact accidents between passenger vehicles and commercial motor vehicles.

On December 12, 2017, the Stop Underrides Act of 2017 was introduced in both the Senate and the House of Representatives by bipartisan representatives. This bill seeks to amend federal transportation law to require that the Department of Transportation issue a final rule requiring the installation of underride guards on all vehicles weighing more than 10,000 pounds and are manufactured on or after the law’s effective date. The bill has not been set for a vote in either chamber of Congress.

Speed Limiters

Speed limiters have been discussed in the commercial motor vehicle industry for nearly a decade, but it was not until August 26, 2016 that two agencies within the Department of Transportation, the National Highway Traffic Safety Administration and Federal Motor Carrier Safety Administration, published a proposal that all commercial vehicles with a gross weight of 26,000 pounds be equipped with a speed limiting device. A speed limiter would, at all times, prevent equipped vehicles from exceeding a particular pre-set speed setting. Under the proposal, three distinct speed settings were recommended: 60, 65 and 68 mph.

If implemented, speed limiters are estimated to save over one billion dollars a year in fuel costs and significantly reduce the severity of motor vehicle accidents and fatalities. Additionally, speed limiters are predicted to reduce the amount of brake and tire wear on commercial vehicles. Despite this, the issue of speed limiters has garnered its fair share of criticism due to being at odds with the reality of day-to-day life in the commercial trucking industry. Many associations have cited potential issues with implementation, including limiting productivity, increasing traffic, and creating “rolling roadblocks.”

The proposal requiring speed limiters, however, has come to a standstill. It is unknown if, or when, a speed limiter mandate may go into effect, as the Department of Transportation has moved speed limiters to its “long term” agenda item list. The speed limiter mandate has not been officially been withdrawn by the Department of Transportation. But, given the Trump administration’s stance against new regulations and push to cut existing federal regulations, it is predicted that any speed limiter mandate will likely continue to stall.

Window Mounts

Section 393.60(e)(1)(i) of the Federal Motor Carrier Safety Regulations prohibits the obstruction of a driver’s field of view by devices mounted on the interior of the windshield. While this section does not apply to “vehicle safety technologies”, Global Position System (GPS) devices are not considered “vehicle safety technologies” under the definition and thus were not permitted to be mounted on the interior of the windshield and/or the area swept by the windshield wipers.

However, now thanks to the Traditional Trucking Corporation’s application for a limited five-year exemption on behalf of all motor carriers, all operators of commercial motor vehicles can utilize GPS devices that are mounted on the interior of the windshield. In its application, the Traditional Trucking Corporation argued that this exemption was necessary because the dash of a commercial motor vehicle is not suitable for mounting a fixture to hold a GPS unit. Additionally, it argued that GPS units are roughly the same size as various safety technologies and that windshield mounting would prevent a driver from taking his/her eyes off of the road to look down at the dash to view a GPS device.

Motor carriers are now allowed to operate commercial motor vehicles equipped with GPS devices mounted (1) not more than 4 inches below the upper edge of the area swept by the windshield wipers; or (2) not more than 7 inches above the lower edge of the area swept by the windshield wipers; and (3) outside of the driver’s sight lines to the road, highway signs and signals.  The Federal Motor Carrier Safety Administration strongly encourages drivers utilizing GPS devices under this exemption to minimize and avoid possible distractions associated with using these devices by programming the device before starting to drive, stopping to reprogram the device as needed, and enabling voice command on the device to help avoid continuous glancing at the device’s display. This exemption is effective August 22, 2018 through August 22, 2023.

For more information about this article, please contact Heather Rice at 410.230.3617 or hrice@fandpnet.com.

Employee or Independent Contractor? Recent Increase in Employee Misclassification Litigation Requires a Close Look to Ensure Your Workers’ Compensation Coverage Is Sufficient

/in /by Employee or Independent Contractor? Recent Increase in Employee Misclassification Litigation Requires a Close Look to Ensure Your Workers’ Compensation Coverage Is Sufficient

This year has brought an increase in employee misclassification litigation across the Nation with unfavorable decisions against carriers spanning from California to Maryland. This increased national attention as to whether a driver is an employee, or an independent contractor deserves attention to protect against unexpected workers’ compensation liability.

Transportation employers who hire in, operate out of, or routinely service Maryland may find themselves subject to a Maryland workers’ compensation claim from a driver who they believe to be an independent contractor. The Maryland Workers’ Compensation Commission narrowly defines “independent contractor” in the interest of providing benefits to injured workers. The definition is “one who contracts to perform a certain work for another according to his own means and methods, free from the employer in all details connected with the performance of the work except as to its product or result.” Having a driver sign forms that they are an independent contractor, execute a form opting out of workers’ compensation insurance as an independent contractor, or signing contracts stating they are independent contractors is no bar to a finding the driver is an employee.

An “employee” is determined by evaluating five factors: “(1) whether the employer selected or hired the worker, (2) whether wages were paid to the worker, (3) whether the employer had the ability to discharge the worker, (4) whether the employer has the ability to control the worker’s conduct, and (5) whether the worker’s work is part of the employer’s regular business. These five factors can be boiled down to one – whether the employer has power or control over the driver as to how they perform his/her job.

Unfortunately, each case is a fact specific review of these factors, but noncompete clauses, uniforms, company policies on the manner of carrying out the job, requiring accountability for days not worked, dictating routes used, employer provided training, and providing the means of performing the job tend to tip the scale toward the driver being an employee entitled to workers’ compensation benefits. With more national attention toward employee misclassification, injured drivers may be more likely to contest their own classification and, with liberal Maryland workers’ compensation laws, may be successful. A review of employee classification and an update of your workers’ compensation insurance will help head off unexpected and uninsured liabilities.

For more information about this article, please contact April Kerns at 410.230.2975 or akerns@fandpnet.com.

F&P on the Road

/in /by F&P on the Road

Bert Randall and Tamara Goorevitz presented at the USLAW Network Retail & Hospitality Exchange in Chicago, IL on October 23.  Bert’s topic was “Managing Risk When Your Employee is the Aggressor” and Tamara’s was “Transportation Claims are Not Just for the Trucking Industry.”

Bert Randall presented at the Maryland Association of Counties (MACo) Winter Conference in Cambridge, MD on January 3.

Andrew Stephenson will be attending Trucking Industry Defense Association (TIDA) Advanced Seminar in San Diego, CA on January 23 -24.

Tamara Goorevitz will be presenting at the American Bus Association’s Marketplace in Louisville, KY on January 26.

Andrew Stephenson and Renee Bowen will be attending the Transportation Megaconference in New Orleans, LA from March 22-23.

Bert Randall will be presenting at Captive Resources, CGI Captive in St. Louis, MO on April 9.

Sarah Lemmert will be presenting at Captive Resources, NCI Captive in Salt Lake City, UT on April 11.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Denver, CO, Chicago, IL, Atlanta, GA, Orlando, FL,  Morrisville, NJ, and London, England from April 3 – July 1.

 

West Virginia: Vicarious Liability of Employers

/in /by West Virginia: Vicarious Liability of Employers

In the state of West Virginia an employer may be held liable for the acts or omissions of his/her employee under three distinct theories: respondeat superior, negligent hiring, and negligent entrustment.

Under the theory of respondeat superior, an employer may be held vicariously liable for tortious acts proximately caused by an employee, as long as those acts are within the scope of employment. In order to prevail under this theory of recovery, a plaintiff must prove that the injury to his person or property results proximately from tortuous conduct of an employee acting within the scope of his employment, and that the act of the employee was done in accordance with the expressed or implied authority of the employer. The scope of the employment is defined as “an act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act.” An employee who deviates far from his duties can take himself out of the scope of the employment. However, an employee’s willful or malicious act may still be within the scope of employment. See, Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973) and Barath v. Performance Trucking, Inc., 188 W. Va. 367, 424 S.E.2d 602 (1992). Moreover, scope of employment is a relative term and requires     a consideration of surrounding circumstances including the duration of the employment, the nature of the wrongful deed, the time and place of its commission, and the purpose of the act. Courtless v. Jolliffe, 203 W.Va. 258, 507 S.E.2d 136(1998).

Finally, in order to establish a claim under the theory of negligent entrustment, a plaintiff must prove that an employer who allows an employee to use a vehicle when the employer knows, or from the circumstances is charged with knowing, that the employee is incompetent or unfit to drive may be liable for an injury inflicted by the employee if the injury was proximately caused by the disqualification, incompetency, inexperience, intoxication or recklessness of the employee. See, Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726 (1962).

Delaware: Vicarious Liability of Employers

/in /by Delaware: Vicarious Liability of Employers

Respondeat Superior is the doctrine by which an employer can be held liable for the actions of its employees. This doctrine only applies if the tortious actions of the employee were within the scope of the employment. Generally, the employer is vicariously liable for the actions of the employee (or its agent). Fisher v. Townsend’s, Inc., 695 A.2d. 53 (Del. 1997). Two general rules establish the framework for determining vicarious liability.

First, if the principal is the master of an agent who is a servant, the fault of the agent, if acting within the scope of employment, will be imputed to the master through respondeat superior.

Second, an owner or contractee will not be held liable for the torts of an independent contractor which are committed in the performance of the contracted work. In Delaware, if the principal assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract, a master/ servant relationship has been created. But, if a worker is not subject to that degree of physical control, but subject only to the general control and direction by the contractee, that worker is an independent contractor. Right to control is the central consideration. See also, West v. Flonard 2010 WL 892190 (Del. Super.). The Delaware Supreme Court has recognized that no one rule can be set to determine if a relationship is that of a servant/master or that of an independent contractor, and each case depends on its own facts. The determination is made by the fact finder, usually a jury.

Delaware   recognizes   Section   220   of the Restatement (Second) of Agency as an authoritative source for defining the master- servant relationship. The Restatement (Second) of Agency states that the following non-exclusive “matters of fact” are to be considered in deciding whether the actual tortfeasor is a servant or an independent contractor:

  1. the extent of control, which, by the agreement, the master may exercise over the details of the work;
  2. whether or not the one employed is engaged in a distinct occupation or business;
  3. the kind of occupation, with reference to whether, in   the   locality,   the   work is usually done under the direction of the employer or by a specialist without supervision;
  4. the skill required in the particular occupation;
  5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
  6. the length of time for which the person is employed;
  7. the method of payment, whether by the time or by the job;
  8. whether or not the work is part of the regular business of the employer;
  9. whether or not the parties believe they are creating the relation of master and servant; and
  10. whether the principal is or is not in business. Cumpston v. McShane, (internal citations omitted), 2009 Del. Super. LEXIS 191, 5-6 (Del. Super. Ct. May 15, 2009)

The key issue is the level and control one has asserted over an independent contractor. If there is little to no control, there will be good arguments that the employer should not be vicariously liable

 

Respondeat Superior: Updates from the District of Columbia and Virginia

/in /by Respondeat Superior: Updates from the District of Columbia and Virginia

Virginia

Any discussion of employer liability   starts with an understanding of the concept of  respondeat superior. Respondeat superior literally means, “let the master answer” and holds an employer vicariously liable for the torts of its employees. The doctrine of respondeat superior is firmly grounded in Virginia common law.

In Virginia, to recover against an employer under a theory of respondeat superior, the plaintiff must establish: 1) the existence of a employer- employee relationship; 2) that the employee was conducting his employer’s business at the time of the commission of the tort, and; 3) that the employee was acting within the scope of his employment. Master Auto Serv. Corp. v. Bowden, 179 Va. 507, 510 (1942)

To test whether the act was committed under the scope of respondeat superior, there must be proof that, “the service itself, in which the tortious act was done, was within the ordinary course of the employer’s business.” Gina Chin v. First Union Bank, 260 Va. 533, 541 (2000).

Are intentional torts and frolics not included within the scope of employment? Not necessarily! “The test of liability is not the motive of the employee in committing the act complained of, but whether the act was within the scope of the duties of employment and in the execution of the services for which he was engaged.” Tri-State Coach Corp. v. Walsh, 188 Va. 299, 306 (1948)

For example, in Tri-State v. Walsh, the Virginia Supreme Court found a defendant bus company liable for its driver’s physical assault of another motor during a traffic dispute. The Court reasoned that because the driver was engaged in the employer’s business (i.e., driving a bus) at the time of his tortious act, the company could also be held liable.

In contrast, in Davis Cary v. Hotel Rueger, Inc., 195 Va. 980 (1954), the Virginia Supreme Court found that the defendant, a hotel bellman who shot an acquaintance inside the hotel after being confronted about a personal debt, was not acting within the scope of his employment.

What to take away from these holdings? In Virginia, respondeat superior is a specific fact based inquiry. It depends on the three factors listed above, with most emphasis on whether your employee acted within the scope of employment.

*Important Note: Employers are not vicariously liable for the acts of independent contractors. A strong independent contract agreement can prevent liability against an employer in most cases.

District of Columbia

The District also recognizes the doctrine of respondeat superior. Under   this doctrine, an employer may be held vicariously liable for tortious acts caused by an employee, as long as those acts are within the scope of employment.

In order to prevail under this theory of recovery, a plaintiff must prove: (1) a master and servant relationship between employer and employee; (2) that the employee was in the process of his employer’s business at the time of the tort; and (3) that the employee was in the scope of his employment at the time of the tort. The scope of the employment is defined as “incidental” to an employer’s business and done “in furtherance of” the employer’s business.

An employee who deviates far from his duties has taken himself out of the scope of the   employment.   Temporary detour from an employer’s business does not destroy the scope of employment factor, e.g. stopping for gas and/or meals. An intentional tort is an employee’s willful or malicious act that may still be within the scope of employment.

For example, overly aggressive security guards; scope-of-employment limitation pertains to this. Traditional test for scope has been: was the employee motivated at least in part by a desire to serve the employer? Another test is foreseeability – whether the employee’s conduct should fairly have been foreseen from the nature of the employment and the duties relating to it.

Similarly, it is a fact intensive inquiry that depends in large part whether the employee was in furtherance of the employer’s business. It is important to note that as in Virginia, employers are not vicariously liable for the acts of independent contractors. A strong independent contract agreement can prevent liability against an employer in most cases.

 

 

 

Respondeat Superior and Vicarious Liability: Maryland Update

/in /by Respondeat Superior and Vicarious Liability: Maryland Update

In Maryland, plaintiffs may sue an employer for the negligence of an   employee, if the employee was acting within the “scope and course” of his or her employment at the time of the employees negligence. Generally, determining whether the employee was in the scope and course of employment requires a detailed factual inquiry. To be within the scope and course of employment, the employee’s actions must be: those the employee is employed to perform, occur in a time and place reasonably associated with the actor’s employment, and done to serve the employer in the furtherance of their business.

On each end of the spectrum, are examples of actions of an employee that are clearly outside the course and scope of employment, and   actions   that   are   clearly within the course and scope of employment. For example, in Tall ex rel Tall v. Board of School Commissioners, a Baltimore City public school system teacher physically assaulted a nine year old child with disabilities during school hours and on the school premises. The teacher’s actions were “unprovoked, highly unusual, and quite outrageous,” and the court found that the teacher’s actions were willful and malicious. For those reasons, despite satisfying the other elements for actions to be within the scope and course of employment, the court found that the teacher’s actions were well beyond his expected activities, and in no way furthered his employer’s interests. Accordingly, the school system was not vicariously liable for the teacher’s actions.

Between the obvious deviations from the course and scope of employment and the situations in which an employee is clearly within the scope of employment, there are various factors courts apply to determine vicarious liability of employers. In Barclay v. Briscoe, a longshoreman was driving home from a twenty-two hour shift, fell asleep at the wheel, and caused a head-on collision. The court agreed that it was foreseeable that the employee might fall asleep on his drive home after a long shift working for the employer. However, foreseeability does not create a duty. In order to hold the employer liable for the off-duty actions of the employee, the court held that there must be some preexisting special relationship between the employer and the plaintiff, or that the employer had the ability and authority to control the off- duty actions of the employee. Barclay follows the consistent holdings in Maryland that employers are generally not liable for the actions of their employees who are commuting to or from work.

The ability and authority to control the actions of an employee are often involved in determining the scope and course of employment. In Drug Fair of Maryland, Inc. v. Smith, a drugstore clerk, usually responsible for restocking shelves and assisting customers, physically detained and attempted to remove a customer from the store. The evidence showed that the clerk was asked to apprehend shoplifters on four to five previous occasions, and that on the date in question, the store manager on duty requested the apprehension and removal of the plaintiff. The employer argued that some of the collateral physical altercations that occurred between the employee and plaintiff during the apprehension were not the type authorized by the employer. Despite there being no express authorization or policy regarding the detention of customers, the court found it dispositive that the clerk was explicitly directed by his employer to detain the plaintiff. Because the actions that occurred were one “continuous sequence,” the court found the entire altercation to be implicitly authorized by the employer.

Generally, whether or not an employee is within the scope and course of employment is a highly fact specific question, and more often than not, is a question for a jury. However, Maryland courts consistently apply the same factors in evaluating the issue. These factors include the location and time of the allegedly tortious actions, whether the time and location are reasonably related to the employee’s employment, whether the actions are the type the employee was hired to perform, and whether the actions are reasonably calculated to serve the employer. If those factors are answered affirmatively, employers will often be held liable for the acts of their employees.