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Are you responsible for your employee’s assault?  
October 23, 2020
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Title:  Importance of Sound Financial Management; How to make your company bankable
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Are you responsible for your employee’s assault?
            You send a technician out to perform a service call; or maybe it’s a salesman or installation tech.  The employee, for any number of reasons, gets into an altercation with the customer or someone on the premises, and assaults someone.  From a criminal perspective it’s called Assault and Battery.  From your point of view, it’s called a headache.
            The assaulted party sues you under two theories:
  *  that you are responsible for the acts of your employee
  *  that you are liable for negligent hiring or negligent supervision of your employee
            How do you think you do in court?
            The legal theory that you are responsible for your employee is called Respondeat Superior.  But this legal theory fails because you are only responsible for the acts or performance of your employee when the employee is working within the scope of employment.  An altercation, including an assault, cannot reasonably be construed as part of the employee’s duties or as an act in furtherance of the employer’s interests.
            You can be held liable for negligent hiring or negligent supervision.  Under this theory of law the complainant would have to establish that you knew or should have known of your employee’s propensity for violence [or whatever wrongdoing occurred – it could be a theft, etc].  If you have no reason to doubt the suitability of your employee then liability for negligent hiring or supervision will not be found.
            Here’s another question, and I ask that the insurance brokers answer it.  If an employee assaults a customer and the employer is sued, will the general liability or E&O policy cover the defense and the damages?

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301