Intentional Act Exclusion
I have a client who was beat up by an employee of a lawn service. Is the employer liable or is the employee acting outside the scope of employment.
Answer: The law in Oklahoma is surprisingly favorable to your prospective case. See, for example: Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1: Toll-taker on toll bridge in scope of agency where he shot driver trying to cross toll bridge without paying; 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 Cargo and Rodebush apply the “motivation to serve” test without calling it that. As an illustration of the motivation to serve test, see Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990): Counseling center could be liable for sexual acts by counselor with a patient under the “motivation to serve” test because reasonably related to transference phenomenon in therapy. However, the Restatement 2nd of Agency, Sec. 245, might seem to explain the two Oklahoma cases just based on foreseeability that if the employee’s job is such that they should foresee the employee feeling a need to use force, there can be agency. I have sent this to you separately, via west law. Finally, there is a potential for a negligent hiring claim if the employee had a bad record for violence of which the employer should have been aware. See, for example, Mistletoe Express v. Culp, 1959 OK 250, 353 P.2d 9. Sounds like you’ve got an interesting case!
Posted on Thu, September 1, 2011
by Sharon Coleman filed under