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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?

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Attorney answers 7

Posted

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.

Asker

Posted

he's probably a contractor, but also an agent. Sounds like i should subpoena hiring practices/requirements etc to be produced at trial in case they assert indep contractor?

Timothy E Fizer

Timothy E Fizer

Posted

I do not know what your specific claim is, or what your damages are, but if they are significant at all, you should contact a lawyer to review this wit you, to know how best to proceed.

Asker

Posted

well - whatever significance they have is now capped at $10,000 :-) Filing is done and too late to re-file.

Timothy E Fizer

Timothy E Fizer

Posted

Good luck to you. I would subpoena the instructor's file from the gym, if the instructor is an independent contractor, there may be a contract between them, and there may be some language that could support an argument that the gym exercises control over the instructor. It may well be worth your while to retain a lawyer to represent you.

Posted

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.

Asker

Posted

thanks Richard, i seem to have limited discovery available to me. Is there anything I should ask gym to produce at time of hearing (by subpoena) to prove he was an employee, or should be treated as an employee? Also - if he was an indep contractor, but i signed paid the gym, how might one show they are responsible for indep contractors actions?

Richard Todd Rosenstein

Richard Todd Rosenstein

Posted

As you told Mr. Kopelson, run it by your local counsel who has shreds to advise you on an hourly basis. Good luck.

Richard Todd Rosenstein

Richard Todd Rosenstein

Posted

shreds = agreed

Posted

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.

Asker

Posted

- 14 months to get to trial - no guarantee of winning - I'm liable for costs (not lawyer fees) win or lose. I read lawyers take on 1 in 10 or 20 malpractice cases due to the grind that can be involved. that's why I ended up filing in small claims court. anyway - that horse has left the building - filing is done.

Posted

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.

Posted

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.

Asker

Posted

very helpful thank you. >>>"he may be an ostensible agent of the gym, and they could have vicarious liability on that basis" I think this is the way to go - he was represented to me as being part of the gym - i paid them and he showed up. Waiver covers 'employees, agents and volunteers'. I think I want him covered by the waiver, and to defeat the waiver separately (posted as separate question). I will run this all past local counsel who has agreed to advise on hourly basis.

Richard Todd Rosenstein

Richard Todd Rosenstein

Posted

It is good to hear that you hired counsel to assist you in the matter.

Posted

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.

Posted

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

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