Question

Common law torts include claims for negligence and intentional torts. Those torts may be available to employees at their workplaces depending upon the specific facts at issue. Examples of intentional torts are: assault, battery, intentional infliction of emotional distress, defamation, invasion of privacy, unlawful restraint / confinement, intentional interference with employee and/or contractual relations and common law retaliatory discharge. Examples of negligence torts, relating to workplace matters, include negligent retention, negligent infliction of emotional distress (where recognized), negligent supervision and negligent hiring. These torts do not include an exclusive list.

Consider the following:

Clyde came to work at ABC, Inc. in an intoxicated condition. His immediate supervisor, Dana, detected a strong odor of alcohol on Clyde's breath. Clyde is a machine operator. Clyde's supervisor, Dana, who is also friends with Clyde's wife (a non-employee), immediately suspended Clyde. The company has no policies regarding substance abuse issues or for matters relating to the aforementioned circumstances. Dana received directions from the human resource manager to suspend Clyde immediately and to send him home for the day. The HR manager intended to contact the company's employment counsel for further direction and advise and Clyde left the workplace.

Clyde abruptly left ABC, Inc.'s premises as so directed. On his way home, Clyde caused a multi-vehicle crash with injuries. He was arrested and charged with driving under the influence.

A passenger in one of the vehicles, which Clyde struck, has sued Clyde and XYZ, Inc. for negligence to recover damages in a six-figure range.

What are the identified claims against ABC, Inc. and Clyde, if any? What are the company's defenses, if any, against such claims? What recommendations would you make to ABC, Inc. for future situations?

Answer 1

Q: What are the identified claims against ABC, Inc. and Clyde, if any? What are the company's defenses, if any, against such claims?

A: The identified claims against Clyde are pertaining to negligent driving and breaching the 'duty of care' towards other drivers and pedestrians when he knowingly drove under the influence of alcohol/drugs and was in an intoxicated condition. Clyde had committed an offence by causing an accident and was thus liable to civil suits for damages under tort law.

The company ABC, Inc. cannot be held liable for the negligence and breach of traffic laws and breach of duty of care by Clyde for Driving Under Influence (DUI). The company ABC Inc.'s best defence strategy would be to argue that Clyde was suspended for the day and was off duty and not representing ABC, Inc. while driving at that time. The company ABC, Inc. cannot be liable for any employees offences committed by them in their personal life or personal capacity.

Q: What recommendations would you make to ABC, Inc. for future situations?

A: In future, as a good HR policy, it may be recommended that such employees who show up for work in an intoxicated condition while being disciplined internally by being suspended, should either be detained in the employee first aid room / sick bay until they are in a fit condition to drive home or they should just dropped home by the company transport or in a taxi service or call their home or emergency number and have someone come and pick them up from the office but not allow such employees to leave the premises and drive back home on their own when it is known that they are in an intoxicated condition which can cause accidents. This would be the best recommended course of action for ABC, Inc. in the future. This would be the best risk mitigation HR procedure for such future circumstances.