I have been spending too much time lately trying to determine the identity of culpable parties in cases against corporations and other business entities. When a person is injured or killed by the wrongful conduct of someone working for a company, whether it be a corporation, LLC, hospital, or other organization, that person’s employer, the company supervising them, is responsible for their conduct.
This is called vicarious liability or, as I discussed in a previous column, the Latin term respondeat superior. Therefore, you, as the injured person, want to make sure that business is included in the lawsuit, because they carry the insurance or the financial responsibility as well as the legal responsibility. But finding out “who” is not always easy.
Here is an example from a recent case. My client was a truck driver for a food service company. His job was to deliver food products to restaurants and required him to start early in the day to ensure that his customers had the products on time. On the day in question he arrived at the business, a Five Guys franchisee, somewhere between 4am and 5am. Due to the early hour he had been given a key to the business, but as he opened the door, he found himself face to face with two men, one holding a gun and one holding what looked to him to be a machete (it turned out later it was a duct pipe knife).
The delivery driver had been looking down at the device he carried to report that he had arrived at the location, and later realized that if he had not immediately looked up and seen them, they might have thought he was reaching for a weapon and either shot or attacked him. As it turned out, they were maintenance workers employed by the franchise, and once they realized what he was there for, they put down their weapons and let him finish his delivery.
As a result of this encounter, my client, who had emigrated to the United States from an African country as a teenager after seeing his father and uncle killed with machetes during a civil war, developed severe post-traumatic stress disorder and was unable to continue working. Among other safety procedures the maintenance workers and their employer had violated, they violated a company rule against carrying firearms on the job.
To sue the company, I had to determine exactly who they were. Like many chain businesses, Five Guys is mostly a brand name, owned by a large holding company which licenses its trademark to franchise owners around the country. Because they are independently owned and operated, in most instances the Five Guys holding company would not be responsible for something the franchisee’s employees did wrong. Thus, I had to figure out who the franchise owner was. I thought it was clear, because its insurance company had referenced a name in letters discussing settlement.
Using information publicly available from the New Hampshire Secretary of State, I sued that business, which was an LLC with three related individuals as members. To my surprise however, when its lawyer “answered” the lawsuit, he claimed the LLC I sued was not the employer of the two men. The lawyer claimed they were employed by a corporation named “Great Bons,” which was based in New York and had no insurance.
After many months and legal filings, I learned that “Great Bons” was nothing but a shell used to administer payroll, something like ADP, and the real owner, which made and enforced the rules the men were supposed to follow, was yet another business, owned by the same family members which had set up the LLC that I had sued.
None of this was information easily available to the public. If you were a customer who slipped and fell in the restaurant or ate contaminated food, you would have no idea that a company with a completely different name than Five Guys was responsible.
I was able to bring the responsible company into the case and it was resolved, but it took far longer and required much more legal work than it would have if the business and its lawyer had been transparent about the actual ownership.
This was an unusual situation, occurring more frequently in medical cases. You may not realize that when you go to a hospital the people taking care of you are often not hospital employees. For various reasons, hospitals often contract with independent companies which provide nurses, technicians, and even doctors. If one or more of them has been negligent in caring for you, there is no effortless way to find out who their actual employer is as the hospital’s website often lists them as part of the “team,” or similar language.
My advice is that if you believe you have been harmed by someone employed by a business, you and your lawyer must do everything you can to discover the actual business name. Maintain a high “index of suspicion” that things are not always as they seem when it comes to business ownership.
