Can You Sue An Employee For Damages Related To A Hit And Run Accident?

Law Articles

When you hire employees, you expect them to act in your best interests when they are on the clock. Unfortunately, employees sometimes make mistakes that can result in financial and reputational losses to your business, and this includes being involved in hit and run accidents on company time. In some situations, though, you may be able to sue the employee to recover those damages. Here's more information about this course of action.

The Courts' Take on Employer vs. Employee Lawsuits

In general, Canadian courts have determined that employees cannot be sued for damages that stem from ordinary mistakes, incompetence, or negligence that occurs during the course of performing their duties. For example, an insurance provider sued a woman for damages resulting from a fire that happened because she left a hot plate unattended. The court dismissed the case, stating—among other things—that employee fallibility was one of the risks and costs of doing business.

However, courts have also ruled that employees can be made to pay damages that result from willful misconduct or conduct that represents a fundamental breach of the employment contract. So an employee who causes and leaves the scene of an accident could be held liable for the damages he or she caused if you can prove the person did so on purpose or the individual's behavior breached the employment contract.

Willful Misconduct vs. Fundamental Breach

Although an employee can be guilty of both, willful misconduct and fundamental breach are two completely different legal theories with different elements that must be proven in order to use them successfully.

Willful misconduct describes as a situation where the perpetrator intentionally injures the victim. It differs from negligence because the person's objective is to hurt the target. An employee who rams another vehicle in a fit of road rage and then flees the accident scene would fit into this category.

To win your case on these grounds, you and your lawyer would need to prove the employee intentionally caused the accident, which can be challenging to do. Many times, though, a person's intent can be shown via the circumstances of the case, which can be corroborated by testimony from the victim and witnesses, video recordings, and forensic evidence.

The other option for recovering damages is to sue for a fundamental breach of employment contract. The contract can be either verbal or written, though you may have a stronger case with a written agreement signed by the employee. To successfully use this legal theory, you must show:

• The employee failed to perform a primary duty that's part of his or her employment with the company
• That, as a result of this failure, you were deprived of the benefit you should have obtained had the employee performed his or her obligation as required

So in the case of a hit and run incident, you will have to prove that driving on the roadways was an aspect of the employee's primary duty (e.g. the person was required to make deliveries).

You'll also have to prove the employee's failure to operate the vehicle in a safe manner and/or stay at the scene of the accident caused you to lose a benefit associated with the person's employment. For instance, an employee involved in a hit and run probably will not report the incident to the company. If enough time passes, the person's failure to report the accident could cause the insurance company to deny any claims that result, forcing you to pay out of pocket for the mishap.

Suing an employee for damages related to a hit and run accident can be a complex and challenging endeavor. Contact a lawyer for assistance with determining the best strategy for your case.

23 April 2015