A bouncer punches you in the face. Who do you sue?

“We men are wretched things. ”

— Homer

Consider yourself fortunate if you’ve never asked that question. But someone has.

Of course you sue the bouncer. But you also sue his employer under a legal theory known as respondeat superior.

Respondeat superior allows you to hold an employer liable for an employee’s tort if the tort was committed within the scope of employment. You need to prove 2 things: 1) an employer/employee relationship; and 2) that the tort was committed within the scope of employment.

Employer/employee relationship

A person is either an employee or an independent contractor; the difference between the two is control. The more control someone has over a person, the more likely that person is an employee. Independent contractors are subject to less control. Generally speaking, your babysitter is an employee and your refrigerator repairman is an independent contractor. Control is the determinative factor.

Scope of employment

The employee’s conduct must be inherent to the job or typical of the employee’s duties. Obviously, punching someone in the face is not an inherent part of being a nurse or bus driver. But what about a bouncer who ‘roughs up’ a rowdy patron?

Just because an employee is not strictly following his duties does not mean that the employer can avoid liability. California law suggests that if an employee’s action is either incident to his duties or could reasonably be foreseen by the employer, then the employer could be liable under respondeat superior.

So if a bouncer punches you in the face, sue him, and then sue his employer under respondeat superior. And don’t forget that the employer can also be liable under other theories like negligent hiring.

Questions? Contact Me for a free consultation.

Evan Walker

Evan W. Walker is a La Jolla attorney who has practiced law since 2008. He is licensed to practice in California, Connecticut, and Louisiana. His entire practice has been in litigation.

Evan is from a small town outside of New Orleans. He attended law school in New Orleans, which was interrupted by Hurricane Katrina. After evacuating to Houston, Evan graduated in 2008 as part of the ‘Hurricane Katrina Class.’

After graduation, Evan worked for a New Orleans insurance defense firm. He defended insurance companies against Hurricane Katrina lawsuits brought by homeowners and business owners.

In 2010, he and his wife moved to New Haven, Connecticut, so his wife could complete a medical residency at Yale. During the next few years, Evan worked for Travelers Insurance Company defending countless personal injury lawsuits.

In 2014, he moved to San Diego so his wife could complete a medical fellowship at UCSD. He then opened his own firm to represent people after years of defending insurance companies.

Evan is a Featured Faculty at Attorney Credits, a CLE company, and a regular contributor to various podcasts and publications. He has also been interviewed by San Diego television stations about his cases and practice.

Evan spent almost a decade as a defense attorney who defended insurance companies from personal injury and property damage lawsuits. He knows how insurance companies bully people and deny claims. And he knows how to fight them.

Bar Admissions: California Connecticut (inactive) Louisiana (inactive)

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