Who Should Be The Defendant In Your Injury Case?
When a personal injury lawyer puts together a case, one thing that can seem a little odd to a client is who ends up being named as the defendant. For example, consider what might happen after a hypothetical slip-and-fall incident at a grocery store. It's extremely unlikely that the individual who was responsible for breaking out a mop and dealing with the situation is going to be named as a defendant. Instead, it's much more likely that the corporation that owns the store will be the defendant.
Why is that the case? A personal injury attorney needs to consider the following factors.
The Nature of Responsibility
The best way to think about the failures of an employee in this sort of scenario is to ask who's responsible for the employee. In the absence of an employment agreement, the employee probably wouldn't be hanging around your local grocery store with a mop. The company that owns and runs the store elected to hire that person and delegate its responsibilities to them.
While the employee's actions are the most proximate cause of the injuries in this hypothetical case, the store is the most responsible party. They chose to open their doors to the public, making everyone who entered the store into an invitee for injury law purposes. It's the invitation of customers to the store that establishes responsibility.
The employee with the mop is merely an agent acting to fulfill the business's responsibility to keep members of the public safe while on the premises. Everything the business does in relation to the employee, such as conducting criminal background checks and interviews during hiring, is with the understanding that the store is on the hook for the employee's faults.
Insurance
Although this is saying the quiet part loud, the truth is that you'll file a claim against whoever can pay. Folks with mops don't usually have professional liability and premises liability insurance policies.
Likewise, insurance policies tend to be designed to insure the premises and the business, and that just makes the employee an uninteresting target for a claim or lawsuit. This means that even if there is another party with insurance in the case, such as a company subcontracted to clean the floors, you're still likely looking at whoever owns or leases the locations as the defendant. In that scenario, the store might pursue recovery of some of its costs from the claim by suing the subcontractor, but that's their problem and not yours.