Imagine the following scenario: you are in your car, driving to your favorite restaurant for a mid-week lunch treat. You pull up to the restaurant, which is located in a particularly busy strip mall in a popular area of town. While navigating the parking lot to look for a parking spot, you are suddenly rear-ended by the car behind you. After getting over the initial shock of the crash, you and the driver who hit you pull over to discuss what happened, exchange information, and call the police so that an incident report can be made.
The driver of the vehicle that hit you apologizes for hitting you; however, the driver also expresses frustration that he got into an accident while “on the clock” as this will make him late for his “work assignment.” You find out that he is a delivery driver for the restaurant you were heading to.
After the other driver has finished speaking with the police, the driver hops back behind the wheel and drives off. The police officer tells you the other driver has auto insurance and you rest assured that you should not have to file a claim with your own auto insurance carrier. However, once you contact the other driver’s auto insurance company, you find out that, unfortunately, his personal policy had lapsed prior to their accident with you. Frustrated and searching for a solution, you wonder if the restaurant should be responsible for your damages, which may include medical bills and time off from work.
Well, should the restaurant be responsible for the driver’s conduct? The answer to that question is more complicated than it may seem – it could depend on whether the driver of the vehicle that hit you was an employee or an independent contractor. Companies like to classify employees as independent contractors in order to limit their liability if employees act negligently or cause an accident in the course and scope of their employment.
Delivery vehicle accidents are often very fact-specific. Under Tennessee law, several factors and circumstances are examined to determine whether a worker is an independent contractor or an employee. These factors include:
- The employer’s right to control the conduct of the work;
- The employer’s right of termination;
- The method of payment;
- The freedom to select and hire helpers;
- Whether the employer furnishes the employee’s tools and equipment;
- Self-scheduling of working hours; and
- The employee’s freedom to offer services to other entities.
Regardless of whether an employment contract classifies the worker as employee or independent contractor, Tennessee courts have emphasized that it is important to consider each of these factors before a final determination is made. However, special attention is often given to the “right to control” and the “right of termination.”
If you are involved in a car accident caused by someone who is on the job and he is determined to be an employee, the employer may be vicariously liable for negligence if the employee was acting within the course and scope of his employment when the accident happened. Was the employee delivering the employer’s products to a client at the employer’s specific request? That can point to the employer being responsible. Was the employee in the process of picking up his or her allergy medication from the pharmacy after dropping the employer’s products off to the client? Employer responsibility is a bit murkier in this scenario when there has been a deviation from job responsibilities.
On the other hand, if you are hit by someone on the job and he is determined to be an independent contractor, according to Tennessee law, the employer likely will not be responsible for your damages. Instead, you would have to pursue the independent contractor individually.
If you find yourself involved in a car accident in Tennessee with someone who may have been on the job at the time of the accident, contact an experienced Memphis auto accident attorney who can investigate your case and assist you in making sure you are pursuing all proper parties. Call Nahon, Saharovich & Trotz at 1-800-LAW-4004 for a free consultation.