Q: If I was injured by a hardware store clerk do I have claim against the clerk or the store or both?

A: Your question concerns the legal doctrine of "vicarious liability", i.e. when is someone legally responsible for the actions of another person? The answer depends on the circumstances of your injury.

If you were injured due to the employee's negligence while he/she was performing the usual duties of his/her job, you should be able to maintain a claim against both the employee and the store. However, if the actions of the employee that caused your injury were "outside the scope" of his/her employment, you will have a much more difficult time maintaining an action against the store. You can still sue the employee, but holding the store responsible will require you to prove something more than just the employee/employer relationship. You would have to prove the employer was negligent for hiring and/or supervising the employee. Those claims require you to prove there was something about the employee that the employer knew, or should have known that made the employee's actions foreseeable.

Here are some examples that may help illustrate how this works:

Example 1: A store clerk leaves the floor wet and forgets to put up a warning sign. You slip on the wet floor. The store is responsible as long as cleaning the floor was part of the clerk's job; which is usually the case.

Example 2 : Store clerk thinks you are stealing from the store. She tackles you and causes you to break your arm. Security is not part of her job duties. In fact, the store owner made her sign a written agreement stating she was forbidden to intervene in suspected thefts, and was required to call the police. You can sue the store clerk for assault and battery, but you will probably not be able to make a claim against the store.

Example 3: Same facts as Example 2, except the clerk who tackled you has done this to other customers. The store owner is aware of her behavior, knows it directly violates the policy, but thinks he has finally convinced her to stop. Under these circumstances, you probably have a claim against the store owner.

A: The overwhelming likelihood is that you have a claim against both. In the real world, if you have the store, you really don't care about the clerk because the store is more likely to have the ability to pay a settlement or a judgment. So if you have a solid negligence case, you should have a viable claim in most cases if you have supportable injuries.