 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Costa v. Able Distributors Inc.11/4/1982
pp. 487, 620 P.2d 763 (1980), whether an employee is acting within the scope of his employment is still a question of fact which must be determined in light of the evidence in each case. Id. In this case, the evidence shows that Arata was not acting within the scope of his employment. His actions were purely for his own benefit and not the company's. Plaintiff cannot recover under the theory of respondeat superior.
Likewise, Costa cannot recover under his ratification theory. The employer 's liability under the ratification theory requires that the act complained of be done on behalf of or under the authority of the employer, and there must be clear evidence of the employer's approval of the wrongful conduct. There is nothing in the record to meet those requirements. Mere continuance of employment after the accident is insufficient to show the approval necessary to trigger liability. Abraham v. Onorato Garages, supra at 635, 446 P.2d at 827.
The last theory of recovery proposed by Costa involves the negligent failure of Able to control Arata's after hours activities on its premises. Under this theory, an employer 's duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee. Abraham v. Onorato Garages, supra at 634, 446 P.2d 826. This theory of recovery
would be applicable, under certain circumstances, even if the employee were acting outside of the scope of his employment. Restatement (Second) of Torts § 317 comment b (1965). In order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising such control over the employee . Abraham v. Onorato Garages, supra at 634, 446 P.2d 826. Able's duty in this case would arise only if Able knew or should have known that Arata had a propensity for causing automobile collisions while driving under the influence of alcohol, and thus, should have prevented Arata from consuming beer on its premises. The record does not indicate any such knowledge or that Arata had had any previous collision or drunk driving arrests.
Costa cites Fletcher v. Baltimore and P.R. Co., 168 U.S. 135 (1897), for the proposition that recovery may be possible where the employer knows of his employees' propensity for misconduct. However, as noted, Fletcher is factually distinguishable from the case at bar, as are the illustrations posed in the commentary to the Restatement of Torts § 317 (1934) (amended 1965), also cited by him.
Affirmed.
Disposition
Affirmed.
Page 1 2 3 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|