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Personal Injury: Is company responsible for actions of employee? (Small claims)

San Rafael, CA |

Is a gym automatically responsible for the negligence of an instructor it hires to give a lesson, or do I need to establish negligent hiring and negligent supervision as well?
This is small claims court.

If they claim at the hearing he was an independent contractor, how might I still hold them responsible? In particular, what might I subpoena for them to produce at trial?

Attorney Answers 7


  1. Based on your question, the answer is "it depends." If the instructor is an employee of the gym, and the action for which you want to hold the instructor responsible was done in the scope of his job as an instructor for the gym, then the probable answer is "Yes," because employers are generally held responsible for the acts of their employees done in the course and scope of their employment. If the instructor was an independent contractor, or was doing something outside the course of his employment, then that may not be the case. If either of the latter scenarios, then you may need to demonstrate negligent hiring or supervision to hold the employer responsible. Contact a local lawyer through Avvo to obtain a specific answer.

    Please remember, however, that specific questions entail specific facts as to which an experienced lawyer can give you reliable advice. Both my and other lawyers' answers to questions on Avvo are for general purposes only and do not establish an attorney-client relationship; nor should they be considered legal advice. They also are simply responses to the questions that are posed, and do not necessarily address every circumstance in your particular situation. Your best approach may be to contact a lawyer directly through Avvo, and have a consultation at which time you can provide complete details.


  2. The question is whether or not the instructor is considered an employee of the gym. Generally speaking, an employer may be vicariously liable for torts committed by an employee under the respondeat superior doctrine. A gym is not automatically responsible for the actions of an independent contractor. In addition, in the gym context, there may have been release and waivers signed in connection with certain activities. You should have the facts of your case reviewed by an attorney so you know how to proceed.


  3. The bigger question is why you brought a personal injury claim in small claims court and why you do not have an attorney.

    In seeking an attorney on this site, beware of limiting your search to attorneys with a 10 rating, and carefully read the AVVO disclaimer regarding their rating system. There are certain factors that are given great weight which do not necessarily have any bearing on an attorney's experience, abilities, and results with certain types of cases. Accordingly, the rating numbers can be misleading. Also beware of basing your choice on the fee charged, as a low fee, depending on the skill, experience and determination of the specific attorney handling your case, could actually have an inverse relationship to the amount actually put in your pocket.


  4. You need to consult with a personal injury attorney on this. Small claims court do not appear to correct. Missing facts but the attorney can help you through this. Best of luck.

    *This information should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.


  5. You have a tactical problem. If the waiver arguably doesn't cover the instructor, (the instructor may be an independent contractor which is very common in gyms), you may want to stay away from arguing the instructor is an employee. As an employee, he may have better argument for being covered by the waiver. You can sue for negligent hiring of an employee and you can also do that for an independent contractor. (proving that may be hard especially with no discovery) Negligent supervision is tough to argue if you want the instructor to be an independent contractor. One reason you hire independent contractors is because you don't want to have to supervise them. In fact if you exercise too much control/supervision over a contractor, they may be treated as an employee. There are complex issues and ways to go depending upon the facts and the contents of the waiver. Thus, unless you signed a separate contract with the instructor, or were specifically advised he was not an employee but independent, he may be an ostensible agent of the gym, and they could have vicarious liability on that basis. Id suggest you sit down with local counsel and go thru the details to craft your best strategy.


  6. Short Answer: It depends.

    Was the instructor an independent contractor? If the instructor was an employee, you must show that the employee committed the tort or injury in furtherance of the employer's objectives.

    These claims are hard to prove, so I'd seek the advice of an attorney if your damages are high enough.


  7. Generally yes, if actions were taken during the scope of his/her employment.

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