When A Store Clerk Attacks a Customer-Who Pays??

As an experienced Maryland trial lawyer, I have handled a number of cases when a store clerk has attacked a customer. One case involved a male cashier attacking a pregnant women. Another case involved a cashier arguing over price with an elderly lady and jumping the counter and beating her. Under these circumstances, personal injury lawyers struggle over who to sue and who pays? Although the law is complex, I have found that when properly pled, most of the time the company or employer can be found responsible.

Under Maryland law, “an employer is ordinarily responsible for the tortuous conduct of [an] employee committed while the servant was acting within the scope of the employment relationship.” An employer is responsible for willful and reckless wrongful employee acts if that act is performed within the scope of employment and in furtherance of the employer’s business. The Maryland courts have held that “[A]n act may be within the scope of employment, even though forbidden or done in a forbidden manner‚Ķ, or consciously‚Ķ tortious (sic).”

In addition to compensatory damages, the employer can also be held responsible for punitive damages for an employee’s tortuous acts committed within the scope of employment, even where the employer does not authorize the employee’s conduct. An imposition of punitive damages on an employer for the tortuous acts of its employees serves to prevent future employee misconduct by encouraging astute supervision. The key issue, most often litigated is was the employee acting within the scope of her employment?

It is well established through Maryland case law that an employer-employee situation analogous to ours amounts to a master-servant relationship. To be within the scope of employment the conduct committed by the employee must be incident to the performance of the duties entrusted to him by the master, even though in opposition to the master’s express and positive orders. Litigating the issue of scope of the employment is very common in these situations. I have found that if properly presented, most judges can be convinced to send this issue to the jury.

Another commonly litigated cause of action in these types of cases is negligent hiring or retention. Maryland law requires that an employer, when hiring an employee to deal directly with the public, must make some reasonable inquiry into the applicant’s fitness to perform the job before hiring or retaining that person as an employee. When an employer does not perform a reasonable inquiry into the fitness of an employee to perform the job and a third person is injured, the employer can be held liable even though injury resulted from the willful act of the employee. Under this theory, an employer who hires someone with a criminal background is most likely to be held responsible for that employees bad acts. This is especially true, the courts have held, when the employee selected will have contact with the public.

Maryland courts have held that in order to establish a negligent hiring and retention claim the employer must owe a duty to the public, the employer must breach that duty, there must be a causal connection between the employer’s breach and the harm suffered by the plaintiff and damages must result from the employer’s breach. As one can tell, often times these cases turn on the facts and how they are presented.

Bottom line is a skilled litigation attorney should be able to keep the employer on the hook when an employee injures or attacks a customer. For more information on this subject, or litigating personal injury claims in Maryland, please contact us for a complimentary consultation.


For more information or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC.

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