LIABILITY OF EMPLOYEE WHILE ON OUT-OF-TOWN ASSIGNMENT

LIABILITY OF EMPLOYEE WHILE ON OUT-OF-TOWN ASSIGNMENT

Who bears the burden when an employee is working out-of-town and gets in trouble in some way? If the employee commits an intentional tort of some kind – for instance, an assault – he is on his own. But what about something less egregious, like a car accident?
In one fairly recent case, a DPS officer who normally worked in Phoenix, was assigned to work for a period of time in Douglas. The distance required him to live in a Douglas motel. After work, he asked for a restaurant recommendation, and left for dinner with his temporary supervisor. On the way, he negligently ran into the plaintiff, causing injuries. The officer made a motion to get himself out of the case, saying he was working for the State when it happened, and that any liability should fall on the State, not him. The trial court granted his motion, and the Court of Appeals agreed.
The Court of Appeals held that the employee was acting for the employer if, at the time of the accident, he was “doing any reasonable thing which his employment expressly or impliedly authorizes him to do or which may reasonably be said to have been contemplated by that employment as necessarily or probably incidental to the employment.” The court listed three factors to consider when deciding whether the employee was acting for his employer.

  • Was the activity the kind the employee was authorized to perform?
  • Did it occur substantially within the authorized time and space limits?
  • Was the employee acting for the purpose of serving the employer?

The Court held that going for a meal on an out-of-town assignment was expected and incidental to the assignment. The Court also held that, if the trip was for the dual purpose of serving the employer and the employee, the employee would still be protected. But the Court also held that, if the employee had already eaten but was then making a second trip to a bar for entertainment, there would be no protection.

What does this mean for you?

For the employee, this means that she needs to remember this distinction between expected actions within the assignment (e.g., meals) and those which serve just the employee (e.g., the bar). Of course, the distinction is not always clear. For instance, what if the employee is a salesperson and is going to the bar, at least in part, to drum up customers?
For the employer, this means that your employee manual should clearly delineate what activities are considered authorized by the assignment and which are not.

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