On Call Employee Not Acting Within Employment During Accident

Respondeat superior or, more simply, vicarious liability is a principle by which an employer can be found liable for the actions of its employees. It allows plaintiffs injured by people who are at work to collect money for their injuries from the often deeper pockets of the enterprise itself. However, an employer is not exposed to liability for activities of its employees that are not included in the course and the scope of their employment. The risks associated with doing business are placed upon those seeking to do business. In the case of Migliore v. Gill, a doctor was found not to be engaged in the course and scope of his employment during a period of “on call” time.

In terms of the incident, Dr. Javed Gill may have made an error while driving. As a result of this alleged error, or at least the resulting accident, Mr. George Migliore was injured. Regardless of who was actually at fault during that accident, which is a matter for another day, the accident happened. The issue at hand in the decision made by the Fifth Circuit Court of Appeal was whether or not Dr. Gill’s employer, Oschner Clinic Foundation, was in any way responsible for Dr. Gill’s conduct. Dr. Gill was not on an errand involving his work at the time of the accident. He was on call at the time of the accident. This meant that Dr. Gill was required to wear a beeper and report to Oschner within thirty minutes of receiving a call during this period. He was not performing activities for which he was employed. He was not driving in the location of the accident for any purposes besides his own. The trial court found, and the appellate court agreed, that Dr. Gill was outside both the course and scope of his employment. The appellate court stated that it might have found differently if Dr. Gill had been summoned by Oschner and was on his way to work at the time of the accident.

Having vicarious liability attach to the conduct of on call employees would be potentially disastrous for the types of companies that utilize an on call system. A company would be placed in the position of having either to have the employee come into the office or pay them to stay home thereby limiting the risk that their conduct would cause an accident. Having liability attach only when the employee’s activity is within both the course and scope of his or her employment is a much more narrow standard that seems to follow with such cases. When, however, are employee actions within the scope and course of an employee’s employment?

The Louisiana Supreme Court has determined that the “course” of a person’s employment refers to place and the “scope” of a person’s employment refers to the activities that a person is performing. In Orgeron v. McDonald, 639 So.2d 224 at 226 (La. 1994), the court stated that “an employee’s conduct is within the scope of his employment ‘if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.'” Because of this, and because of the effects it would have on public policy, “on call” employees are not considered to be within the scope of their employment for purposes of vicarious liability.


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