As An Employee, do You Have A Duty of Care for Customers During An Emergency?

On April 6, 2022, attorney David Jagolinzer sat down at a blackjack table in Las Vegas and began playing. Minutes later, he suffered a heart attack that would later end his life. Security footage shows Jagolinzer slumping over the table, arm outstretched, while the dealer continued dealing cards to the other players.

For more than 15 minutes, Jagolinzer lay motionless on the blackjack table as the other players and the dealer moved around him. Not until a new dealer arrived and commented that Jagolinzer did not appear to be breathing did anyone call security. An AED (automatic external defibrillator) was brought, but none of the employees had been trained to use it.

Paramedics arrived 26 minutes after Jagolinzer initially collapsed over his cards. They restored a viable heart rhythm, but too much time had passed. Jagolinzer suffered severe brain damage and died from anoxic encephalopathy on October 18, 2022, six months after he sat down for a blackjack game.

His family has filed a wrongful death lawsuit against Wynn Resorts, the casino where this tragedy occurred, claiming negligence and lack of employee training caused his death. The casino has said they “strongly dispute” these claims.

Negligence and Wrongful Death

We all hope the people around us know what to do in an emergency. We like to think that if we collapse onto a blackjack table with a heart attack, the employees of the casino will spring into action and at least call 911 before we suffer brain damage and die. We seldom wonder if the employees are required to make that call.

Duty of Care

When an attorney attempts to prove a death was due to the negligence of the employees of a business, they first must prove a duty of care existed between the business and the customer. Establishing this duty of care can be difficult when the emergency is not obvious.

In some cases, such as a doctor-patient relationship, the duty of care is obvious. A doctor has to ensure their patients do not get worse under their treatment. In other cases, duty of care may be inferred. All drivers have to obey traffic laws so other drivers don’t get injured in traffic accidents.

In a case like Jagolinzer’s death, it may be unclear whether a duty exists. An employee who is not medically trained may not know if someone who has slumped over the table is sleeping, unconscious, or even dead. Whether they are required to find out depends on the company policy.

Scope of Employment

This is sometimes called scope of employment. Employees are usually given a lengthy job description or policy manual when they are hired. This document describes what they do and what they’re not allowed to do while they’re on the job. For instance, a blackjack dealer’s scope of employment includes:

• Providing excellent customer service
• Creating a memorable gaming experience
• Maintaining a professional demeanor, language, and attire
• Maintaining gaming integrity
• An ability to deal blackjack, craps, baccarat, and roulette
• A valid Nevada gaming license

A dealer is not expected to have medical skills, and unless they are provided during training, cannot be expected to exercise them in an emergency.

Breach of Duty

In a negligence or wrongful death case, the attorney must show that the duty of care was breached, that is, something that should have been done was not done or something that should not have been done was done wrongly. In a traffic case, this can be as simple as showing someone was driving too fast and ran a red light.

Employees may worry about acting outside their scope of employment, and this can lead to issues in negligence cases. There have been situations where employees have done the morally correct thing and lost their jobs. In 2012, a Florida lifeguard was fired for leaving his post to rescue a drowning man in an unguarded stretch of beach. Two other guards had monitored his position, but his company terminated him anyway. These stories make employees fear doing anything their job descriptions do not allow.

Because of employers’ fear of being held responsible for their employees’ actions, they attempt to narrowly define the scope of duty, and punish the workers harshly for going outside the bounds. This leads to situations where innocent victims suffer, and the company looks worse. Ironically, had the lifeguard been allowed to leave his post, nothing would have come of his actions. Other swimmers had pulled the drowning man to shore and called 911 before he arrived.

Actual and Proximate Cause

For a negligence or wrongful death claim to be brought, the act must be the actual cause of the injury or death. In legal terminology, the person would still be alive “but-for” the actor’s negligence.

Sometimes this is easy to demonstrate. If a doctor leaves a surgical instrument inside a patient, there is no doubt that the patient would be fine except for that error. However, when someone suffers a heart attack it is harder to show where the actual cause lies. What negligent action caused the injury in this case? Was it the employee’s failure to call 911? In that case, there must be an indication that the employee had a responsibility to call 911 when a patron collapsed at the blackjack table or that they understood that the patron was having a heart attack and was not simply dozing or drunk.

When the employee’s fear of being terminated for doing anything they are not specifically told to do combines with an emergency that requires them to do something they are not qualified to do or which they are not able to recognize, injury or death are likely to follow.

Vicarious Liability

Vicarious liability is a legal theory in which employers are responsible for the actions of their employees as long as they act within the scope of their employment. The employee may carry some responsibility (for instance, just because the boss said, “keep driving straight!” doesn’t mean the employee can run over a pedestrian), but the employer is responsible for creating the conditions in which the employee operates.

Employers are responsible because:

• They are responsible for the employees while they are at work
• They limit or control the actions of their employees while on the job
• They can limit their liability by exercising due care over their employees’ behavior

A complicated example of vicarious liability occurred when the now-famous Exxon Valdez ran aground in Prince William Sound and dumped its load of crude oil. Although popular culture blamed a drunken captain, Exxon shared vicarious blame for allowing an untrained crew on the third watch, failing to transition to a double-hulled tanker in the pristine waters as originally promised, and lax maintenance over radar equipment that prevented seeing the shoal until it was too late.

Respondeat Superior

A related theory is respondeat superior. This tort law concept, meaning “let the master answer,” makes employers liable for the wrongful acts of their subordinates as long as they occurred during the scope of the employee’s employment. Each state has its own standard for response, but the general requirement is either that the employer benefits from the employee’s actions or that the actions are common enough that they are considered a job characteristic.

A typical example is a big rig accident. When someone is injured in a trucking accident, they usually bring the trucker’s company into the lawsuit, because the driver was an employee or agent of the company, and their actions were representative of the company as a whole.

Employee Duties

When someone is hired, whether as a card dealer or as a truck driver, they are usually handed an employee handbook or policy document and told to read it; within that handbook are all their prescribed duties and authorized responsibilities. Occasionally, the handbook will contain things that the employee is not supposed to do. More often, the employee is told on the job what they’re not allowed to do, or they find out the hard way, as the Florida lifeguard did when he saved a man on the wrong side of the beach.

“That’s Not My Job Description”

Sometimes, workers are asked to do things outside their job description. The Internet is filled with ways to set job boundaries and when and how to take on extra work or additional assignments that are not within the technical “scope of your duties.”

Depending on the nature of your job, this can be a stepping stone to a promotion, or it can just be a way to have people take advantage of you. Legally, however, when your manager asks you to do something outside your job description, it isn’t the same thing as if you do it on your own. In this case, you are being told to do so, and your employer will be on the hook if anything goes wrong.

“That’s My Job, But That’s Not Our Beach”

Sometimes, employees want to do the right thing, and may not recognize why the right thing can have negative repercussions. In the case of the Florida lifeguard, he worked for a private company that had been hired to work on a private beach. The company presumably had insurance for him and his fellow lifeguards while they stayed on that stretch of beach. They were likely indemnified for that private property if anything happened to the residents.

Had something gone wrong during his rescue, to him or the fortunate swimmer, the private company would have been liable (vicarious liability) but not covered by their insurance. Both he and his company would have been on the hook. Luckily, nothing bad happened, and the lifeguard got a better job somewhere else.

“This Guy Passed Out at My Blackjack Table”

When the gentleman passed out at the card table, the first question the family’s attorney will ask is what the company policy is on people lying across blackjack tables. In other words, what was the dealer supposed to do at that juncture, and did they do the right thing?

If an employee has no specific instructions about what to do when someone falls asleep or passes out at a card table, then the next step is to look at corporate culture. Has this happened before, and what was the response at that time? What happened to the dealer the last time someone fell asleep at their table?

Protecting Yourself in an Emergency

As an employee, the best thing you can do is ask questions about your job responsibilities and be clear about what you are and are not supposed to do. If you are ever uncertain about emergencies, ask a manager, and if you cannot get a clear answer, keep asking until you get one.

Emergency Protocols

Most states require job sites to post emergency protocols somewhere on the property. These documents should contain a list of everything everyone is expected to do in case of a natural disaster or an unnatural disaster, such as an active shooter or a bomb threat. They are supposed to be available to everyone. Surprisingly, most people don’t even know these things exist.

Protecting Yourself From Bus Undercarriages

In situations like Las Vegas, Florida, or the Exxon Valdez, the company usually throws the employee under the nearest bus. They will say they did everything right and it is the employee’s fault for failing to do something or misunderstanding their training.

If you believe you have been a victim of a wrongful termination or have been wrongly disciplined because you handled an emergency at work, you must consult a legal professional immediately. An attorney can review your company handbook or employee policy and help you determine what you should or should not have done or if you’re being scapegoated for a policy that wasn’t in place.

Every state has its own particular vicarious liability policies. If you need to talk to someone in Texas or Louisiana, call Morris & Dewett Injury Law at (318) 221-1508 for a free consultation.