- An employee is acting within the ordinary scope of their employment, and
- As a result of the employee’s wrongful actions, you get injured.
Example: A casino patron slips on a drink a cocktail waitress accidentally spilled. Since carrying drinks is a normal part of being a cocktail waitress, the patron can sue the casino, which has much deeper pockets than the cocktail waitress.1
Respondeant superior differs from negligent hiring, retention or supervision of an employee in that with respondeat superior, you do not need to show that the employer acted negligently. Instead, because the employer benefits from the employee’s work, the law permits the employer to be held liable for the employee’s negligent actions.
To help you better understand Nevada’s law on respondeat superior, our personal injury lawyers discuss the following, below:
- 1. The Elements of Respondeat Superior in Nevada
- 2. Who is an employee under respondeat superior?
- 3. Meaning of “Within the Scope of Employment”
- 4. Driving to Work – Nevada’s “Coming and Going” Rule
- 5. When Employers Are Liable for Employees’ Intentional Acts
- Additional Reading
Patrons who get injured by negligent employees can sue the employer.
1. The Elements of Respondeat Superior in Nevada
Responsdeat superior is a Latin phrase meaning “let the master answer.” The doctrine makes a Nevada employer liable for injuries caused by an employee when:
- The employee is under the control of the employer and
- The act was within the scope of the employee’s regular job duties.2
2. Who is an employee under respondeat superior?
There is no set rule for when someone is considered an employee under Nevada law. Courts will look to see whether a person is working under the control of and for the benefit of the employer.
For instance, Nevada courts hold that if a property owner hires a third-party security company, the security guards are “within the control of the property owner” for purposes of respondeat superior. Therefore, someone who gets injured due to a guard’s negligence could sue the property owner.3
3. Meaning of “Within the Scope of Employment”
An employee acts within the scope of their employment when the injury to a third party occurs:
- At work,
- During working hours, and
- While the employee is reasonably performing their duties.4
Another way of looking at the question is whether the employee’s negligent acts are part of the normal risk of engaging in the employer’s business.
For instance, accidentally cutting a patron’s cuticles is a normal risk of operating a nail salon. Though if the beautician uses their tweezers to try to remove a patron’s splinter and thereby caused a serious infection, the action would probably not fall within the scope of the beautician’s employment, no matter how well-meaning. Ultimately, a jury would decide.
4. Driving to Work – Nevada’s “Coming and Going” Rule
An employee is not acting within the scope of employment while traveling to or from work unless they are performing an errand for the employer or otherwise conferring a benefit upon the employer.5 This is known as Nevada’s “going and coming” rule.
Example: Brett is picking up coffee for his boss when his car crashes into a pedestrian. Because Brett was on company time and performing an errand for his employer, the company’s insurance should cover the pedestrian’s injuries. Had Brett been getting coffee without his boss having sent him, the coming and going rule would apply. Only Brett’s insurer would cover the pedestrian’s injuries.
5. When Employers Are Liable for Employees’ Intentional Acts
In Nevada, an employer is generally not liable for the intentional wrongful action of employees unless it is committed in the course of a task assigned to the employee.
For example, if a casino security guard is under an instruction to remove unruly patrons from the premises, and a guard uses too much force and injures a patron, arguably the guard is acting within the scope of his employment. As a result, the casino would most likely be held liable for the patron’s injuries.6
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Section 1983 Municipal Liability and the Doctrine of Respondeat Superior – The University of Chicago Law Review.
- Respondeat Superior in the Light of Comparative Law – Louisiana Law Review.
- Respondeat Superior: Basic Test for Application of Doctrine – Marquette Law Review.
- When Should the Master Answer? Respondeat Superior and the Criminal Law – Criminal Law and Philosophy.
- The Revival of Respondeat Superior and Evolution of Gatekeeper Liability – Georgetown Law Review.
Legal references:
- Wright v. Watkins and Shepard Trucking, Inc. 972 F.Supp.2d 1218 (2013).
- Molino v. Asher, 96 Nev. 814, 618 P.2d 878 (1980). Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217 (1997).
- National Convenience Stores v. Fantauzzi, 94 Nev. 655, 391 P.2d 507 (1964).
- Wood v. Safeway, 121 Nev. 724 (2005).
- Kornton v. Conrad, 119 Nev. 123 (2003); Evans v. Southwest Gas, 108 Nev. 1002 (1992).
- Prell Hotel Corp. v. Antonacci, 86 Nev. 390 (970). NRS 41.745 – Liability of employer for intentional conduct of employee; limitations.
1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:
(a) Was a truly independent venture of the employee;
(b) Was not committed in the course of the very task assigned to the employee; and
(c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment.For the purposes of this subsection, the conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.
2. Nothing in this section imposes strict liability on an employer for any unforeseeable intentional act of an employee.
3. For the purposes of this section:
(a) “Employee” means any person who is employed by an employer, including, without limitation, any present or former officer or employee, immune contractor, an employee of a university school for profoundly gifted pupils described in chapter 388C of NRS or a member of a board or commission or Legislator in this State.
(b) “Employer” means any public or private employer in this State…