Plaintiff is hurt by a delivery man who put heavy box on her back. Delivery company claims no respondeat superior liability claiming act outside course and scope of employment. I'm aware of the Ada-Konawa Bridge v. Cargo case, "The general rule is that a master or principal is liable for the tortious acts of his servant or agent where such acts are incidental to and one in furtherance of the business of the master or principal, and this is true, although the servant or agent acted in excess of the authority conferred upon him, or willfully or maliciously committed the wrongs," but I'm looking for something closer to point.
Answer: In addition to Ada-Konawa Bridge Co. v. Cargo, see: Rodebush v. Okla. Nursing Homes, Ltd.,1993 OK 160, 867 P.2d 1241: Employer liable for nursing home attendant who slapped patient.
It appears to me these two cases adopt, without using the term, the "motivation to serve" test. This is as contrasted to the "technical control" test. See, for example, Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990): Therapist having sex with patient was in scope of employment with counseling center. The "motivation to serve" test is satisfied if act was incidental to legitimate work activities. Contra: Andrews v. U.S., 732 F.2d 366 (4th Cir. 1984). Contrasts MTS test with the "technical control" test. As to technical control test, see: Andrews v. U.S., 732 F.2d 366, 370 (4th Cir. 1984): Adopts "technical control" test, which requires that the employee's act be committed with implied authority, acquiescence, or subsequent ratification of the employer. Accord: Hoover v. University of Chicago Hospitals, 366 N.E.2d 925 (Ill.Ct.App. 1977); Cosgrove v. Lawrence, 214 Super.Ct. 670, 520 A.2d 844 (1986), aff'd 522 A.2d 483 (1987).
Posted on Thu, November 17, 2011
by Sharon Coleman filed under