Let's look at some case law which shows the range of liability which extends to employers for the conduct of their employees:
Osborne v. Lyles (1992), 63 Ohio St. 3d 326, 587 N.E. 2d 825: An off-duty Cleveland police officer who was involved in an altercation following a traffic accident in his personal vehicle was held to be within the scope of employment. The court placed significant reliance on a Cleveland police manual which essentially stated that officers are deemed to always be on duty, despite their normal working hours.
A truck driver was held to be within the scope of employment while delivering merchandise inside a garage owned by a customer,
notwithstanding instructions by the employer which prohibited driving beyond the street curb during deliveries. Gulla v. Straus (1950), 154 Ohio St. 193, 93 N.E. 2d 662.
Negligent Entrustment: The owner/lessor of a motor vehicle may be held liable if it is established that: (1) the motor vehicle was driven with permission of the owner, (2) the driver was in fact incompetent, and (3) the owner (defendant) knew such facts as to imply at the time of entrustment that the entrustee was unlicensed or incompetent or unqualified. Gulla v. Strauss (1950), 154 Ohio St. 193.
Express Permission: To sustain an action for negligent entrustment of a vehicle, a plaintiff must show that the vehicle was driven with the owner’s permission and authority[.] St. Amand v. Spurling, et al., 2006 Ohio 4391 (2nd Dist).
Here is a ruling from the
4th Circuit Court of Appeals which backs the trucking company's position:
John Doe, M.D. (Dr. Doe) appeals a decision of the district court granting summary judgment to University of Maryland Medical System Corporation (UMMSC)1 on his claims under Sec. 504 of the Rehabilitation Act, 29 U.S.C.A. Sec. 794 (West Supp.1994), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. Sec. 12132 (West Supp.1994). The district court reasoned that Dr. Doe, who is a carrier of the human immunodeficiency virus (HIV), is not an otherwise "qualified individual" with a disability. Because we agree with the district court that Dr. Doe poses a significant risk to patients at UMMSC that cannot be eliminated by reasonable accommodation, we affirm
Did this physician ever infect anyone with HIV during a surgical operation? No, he didn't. Yet he was denied permission to operate on patients because he did pose a risk to public safety and there was no way for the hospital to eliminate that risk by reasonable accommodation.
What happens when an accident happens and courts must assign blame. Look at this
case of a baseball bat company being held liable for the death of a pitcher who was stuck by a ball that was batted by the player at bat.
While pitching in an American Legion baseball game on July 25, 2003, the eighteen year-old plaintiff was struck in the head by a batted ball that was hit using H&B’s model CB-13 aluminum bat. Tragically, plaintiff died from his injuries. In 2006, Brandon’s parents sued H&B, claiming H&B’s model CB-13 aluminum bat was in a defective condition because of the alleged enhanced risks associated with its use: It increased the velocity speed of a batted ball when it left the bat, thus decreasing infielders’ reaction times, which allegedly resulted in a greater number of high energy batted balls in the infield.
The matter was tried in October, 2009, and the design defect and failure to warn claims were submitted to the jury, which concluded that the model CB-13 aluminum bat was not designed defectively, but determined the bat was in a defective condition due to H&B’s failure to warn of the enhanced risks associated with its use. They awarded plaintiffs an $850,000 verdict on their failure to warn claim. Defendant appealed.
The company put stickers on their baseball bats stating that the bats produce faster velocity in balls hit with the bats that this warning wasn't sufficient and that the company should have spread this message far and wide through the use of various advertising mediums.
This trucking company knows that relapse rates for treated alcoholics are on the order of 60% and it knows that the law holds companies to standards which make it nearly impossible for the company to indemnify themselves against the liability caused by their employees. There is a heightened probability of alcoholics driving drunk compared to non-alcoholics and this trucking company now knows that this driver is an alcoholic, so under the legal doctrines of Expressed Permission and Negligent Entrustment, this company is liable for the harms caused by their alcoholic driver should he cause an accident.
This company has legal precedent, via the Univ. of Maryland case to remove this driver from a position where he presents a harm to the public that cannot be negated by reasonable accommodation.
