Respondeat superior is a form of vicarious liability under which an employer can be held indirectly liable for the negligent acts or omissions of its employees. In Nevada, respondeat superior applies when:
- An employee is acting within the ordinary scope of his or her employment, and
- As a result of the employee's wrongful actions, a plaintiff is injured.
Example: Carla, a cocktail waitress at a Las Vegas casino, accidentally spills a drink on the floor. Ellen, a patron at the casino, suffers a slip-and-fall accident because of the spilled drink and bangs her head on a slot machine. She is taken by ambulance and diagnosed with a brain injury at Las Vegas Sunrise Hospital.
Carla is responsible for Ellen's compensatory damages caused by Carla's negligence. These include payment of medical bills, lost wages, and pain and suffering under Nevada law.
However, Carla makes only minimum wage and tips. But the casino has Nevada premises liability insurance with high limits. Carrying drinks and occasionally spilling them is a normal part of being a cocktail waitress. Accordingly, Ellen can sue the casino instead of or in addition to Carla.1
Respondeant superior differs from Nevada's law on negligent hiring, retention or supervision of an employee in that with respondeat superior, the plaintiff does not need to show that the employer acted negligently. Instead, because the employer benefits from the employee's actions generally, 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 Las Vegas Nevada personal injury lawyers discuss the following, below:
- 1. The elements of respondeat superior in Nevada
- 2. Who is an employee under Nevada's respondeat superior law?
- 3. Nevada's definition of “within the scope of employment”
- 4. Driving to work – Nevada's “coming and going” rule
- 5. When an employer is liable for the intentional acts of its employees
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
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 have held that a property owner who desires to protect his or her premises has a “non-delegable” obligation to provide responsible security personnel.3
So even if the property owner hires a third-party security company, the security guards are considered to be within the control of the property owner for purposes of Nevada's respondeat superior law.
An employee acts within the scope of his or her employment when the injury to a third party occurs:
- At work,
- During working hours, and
- While the employee is reasonably performing his or her 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.
So, for instance, a waitress spilling a drink is a normal risk of operating a bar or restaurant. But a waitress who assaults a patron would not be acting within the normal scope of her duties.
Likewise, accidentally cutting a patron's head is a normal risk of operating a beauty salon. But if someone doing facials in the salon used her 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.
An employee is not acting within the scope of employment while traveling to or from work unless the employee is 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 works as an assistant to Ashley. Ashley sends Brett out one day to pick up coffee drinks for the workers at the office. On the way to the coffee place, Brett gets into an injury causing car accident with Les. Les suffers a spinal injury as a result of the accident. Because Brett was on company time and performing an errand for the employer, the company's insurance should cover Les' injuries.
But… had Brett simply decided to stop for coffee on his way to work and get an extra one for his boss, the coming and going rule would apply. Since he would have to drive in to work anyway, the commute would be on his own time. Les would have to look solely to Brett's auto insurer for coverage for his injuries. He could not sue Brett's employer.
In general, under Section 41.745 of the Nevada Revised Statutes, an employer is not liable for the intentional wrongful actions of employees.
Specifically, NRS 41.745 provides, in relevant part:
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…
However, notwithstanding NRS 41.745, an employer can be held liable for an intentional act of an employee when it is committed in the course of a task assigned to the employee.
An example is injuries caused by a security guard at a Las Vegas casino. If the 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
Injured by someone's employee in Las Vegas? Call us for help…
If you were injured by someone who was on the job, we invite you to contact us for a free consultation to discuss who might be responsible.
Our Las Vegas injury and accident attorneys will fully investigate a case so that we don't leave money on the table. We'll find all the possible parties who are responsible for your injury so that you can get the compensation you need and the peace of mind you deserve.
Call us at 702-DEFENSE (702-333-3673) to schedule your free consultation. Or fill out the form on this page.
We will fight hard to get you the justice you deserve. And we won't take a dime until you win or settle your case.
- 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).