Now we'll talk about liability issues associated with Torts. In this lesson, we'll talk about what a tort is liability that you may have as an employer with respect to torts. We'll help put a definition or help you get your mind around what it means to be within the scope of employment. That's a legal construct that we'll try to break down a bit and then we'll talk about what liability look like in a situation where you have multiple actors contributing to a torch. So first let's jump in on what is a tort. A tort is a wrongful act that results in some kind of injury to another and is subject to civil legal liability. And when I say it's some kind of injury that can include an injury to someone's body, an injury to their property, to their reputation, so torts are fairly broad in the sense that the injuries that may result from the wrongful act could be subject to tort liability. And then civil legal liability is distinguishable from criminal legal liability. So criminal liability could result in present time or jail sentences. Whereas civil legal liability usually only involves monetary damages or equitable relief from a court. Here are some examples of torts. Negligence, personal injury, false imprisonment, assault/battery, intentional infliction of emotional distress, defamation, invasion of privacy, conversion, trespass any act that could result in an injury to someone's person that property, their reputation will fall under the broad umbrella of torts. Now keep in mind that while all of these actions are torts, some of them may also be crimes. So, for example, assault and battery, that's a tort, and it could be subject to civil legal liability. It's also, in many places a crime which will make it subject to criminal liability. False imprisonment is another example of a tort that can also be a crime. A good example of this to keep in mind that the distinction between a civil legal liability and criminal legal liability, let's look at it in a gracious case. For example, a homicide. Where someone, the injury actually resulted in death, homicide is prosecutable under the criminal statutes, and so it's a crime, but also wrongful death is a tort, and it could be prosecuted in a civil court for civil legal liability. So there's a lot of crossover between things that may be crimes and punishable by prison time and things that are torts which are remedied through a civil action. Now, as an employer torts are something that you want to make sure you understand the scope of your potential liability around. And that's because under the law, an employer is liable for the torts of their employees when the employees are acting within the scope of employment. And we'll get into some details about what the scope of employment means. But as an employer, the important thing to understand is that you should educate your employees about torts, about the standards of conduct that they should maintain as they're working on your behalf. And you should also make sure you have mechanisms in place to minimize the opportunities for employees to commit torts, while they're acting within the scope of employment. So let's talk a bit about what it means to be within the scope of employment. First, the conduct that the employees is engaging in must be consistent with the job, right? So if you are in a painting business and one of your employees is painting a house, that conduct is consistent with your job, and therefore the painter while painting the house would be acting within the scope of employment. Now, if you're in the job of painting and your employer is out joyriding. Joyriding is not consistent with the job of painting, and therefore during the time when the employees out riding that may not constitute a scope of employment. Also, the job that the employee is doing should be occurring during the time and space and limitations that are are normally authorized by the employer. So if most of your employees are working from 9 to 5, if an employee is doing some conduct that's outside of that window or outside of the kind of the normal activity that you authorize as the employer, then there's an argument you can make that the conduct is not within the scope of employment. Another factor that courts like to look at here is whether an employer is benefiting from the conduct of the employee. So if the employee, even if this is not the normal course of action for the employee, but what the employee is doing is furthering the employers purpose, they're benefiting the employer, then a court can decide that this conduct is with the scope of an employment. Now, the scope of employment, once you get your head around that, it's easy to figure that out. But the law throws in this additional issue that you should keep in mind and that's called aided in the agency relation. And this construct in the law allows an employee's conduct even outside of the scope of employment to be attributable to you as the employer. So you want to understand that the aided and an agency relation, although the employee may not be acting within the scope of employment, you can still be held liable. So you want to make sure that as you are educating your employees, you understand situations where these types of legal constructs, they come into play. Let's talk about frolic and detour, because these are the kind of the key words that are used in the analysis of whether a particular conduct is in within the scope of importance of employment. And there are two different types of analysis. First, a frolic. A frolic is when an employee is completely off track, there completely doing something that's that's not consistent with what they're supposed to be doing as part of their employment. You can think of a frolic as skipping class, right? You're supposed to be in math class but you decided to go off and and go shopping with your friends. That would be a frolic, completely inconsistent with what you're supposed to be doing at that time on behalf of the employer. Now, detour is different. A detour is for example, on your way to math class, you decided to stop off at a retail shop to pick up a gift for your mom that you will give her later that night and then you head over the math class. Math classes where you're supposed to be, but you decided to stop off briefly to attend to some other business that's considered a detour. Now, under the law, if an employee is on a frolic, then the conduct that's happening during the frolic would not be considered within the scope of employment. However, if what the employee is engaging in is a detour, then the law would construe the conduct that occurs during a detour as part of the employee's conduct within the scope of the employee's employment. So if your employee is having a brief detour from work that they're authorized to do, and if some tort occurs during that detour, you as an employer could still be held liable for that tort. Now, let's talk about situations where multiple defendants or multiple actors may be involved in causing a tort. In those situations, the question oftentimes comes up as to who should be liable if multiple people contributed to the plaintiffs injury, or the trespass or the damage to reputation, whatever tort is being analyzed, then who should be left holding the back? And in most states that look at these types of situations, the law imposes what we call joint and severable liability. Now, what that means is that jointly, all parties reliable and each party is liable. So what that may mean for you as a business is if you are along with other defendants, whether it's an employee, whether it's another company that's also part of the analysis each person in that chain, it's individually liable for the entire injury or collectively, you all collectively can be held liable. Now, how this plays out sometimes is that some defendants it may be hard to get them into court or they may be insolvent. They may not have money to pay and so you could be left holding the bag and those types of situations. Now, there are a couple of ways that you can help mitigate this, to that, I'll point out here is contribution and indemnification. Contribution is what you want to utilize when you are in a joint and several liability situation and one party is not able to show up. Contribution says, hey, you have to contribute to the overall bill that's still here. And you can have agreements of our contribution or you can have a separate legal action where you go after a joint defend it for contribution to the overall bill that you had to pay. Indemnification is slightly different from contribution. Idemnification is a separate agreement by which one party agrees to step in the shoes of another party and to hold them harmless from any any claims against them. And indemnification agreement is used, for example, if you're using someone's technology, and you want to make sure that if someone sues you for use of that technology, that the person who supplied the technology for you is the person who should ultimately be held liable. You want to have an agreement where that person is indemnifying you stepping in your shoes to ensure that the claim against you doesn't necessarily come out of your pockets, but comes out of their pockets. Contribution and indemnification are two ways to help deal with situations where you have multiple people involved with the tort. So in summary torts compose enormous legal exposure for your business. You saw the long list of torts and that's just scratching the surface of the amount of torts. A tort is any type of wrongful act that results in an injury to another person. And so because of that, and because of that universe is being so big, it's huge exposure for your business. So you got to understand what your risk factors look like for your business. Employers are liable for the employees torts if the employees acted within the scope of its business and frolic detour, understanding when an employee might be acting within the scope of unemployment or not, or things you want to keep in mind. If it's a frolic, if it's completely outside of what the employee should be doing and in connection with your business, then it's likely not to be deemed acting within the scope of employment. It's merely a detour, a brief pit stop on the way to working on your behalf, then the employee's conduct may be considered acting within the scope of employment. And then keep in mind at this point about the aided in the agency relation because that's illegal construct that you want to speak to your lawyers about that allows the court to impose liability on an employer for an employee's conduct, even if that conduct is outside at the school of employment. So as you're dealing with your employees and educating your employees, you want to be sure that not only you, as the business owner understands liability associated with tort. But you also educate your employees so that they are acting on behalf of your company in a way that's going to minimize exposure for you and your business.
