TAMPA — A pool supply store employee accused of killing a pedestrian with a company pickup truck on Bayshore Boulevard faces charges of DUI manslaughter and vehicular homicide. But the case also raises the question of whether his employer, a Pinch A Penny franchise in South Tampa, could be held liable in the victim’s death.
Civil wrongful death claims are, in essence, negligence claims. The only difference is that the victim has died. Someone who kills a pedestrian while driving impaired could leave their employer on the hook for damages.
The driver, Benjamin Douglas Ehas, 31, told Tampa police officers he took Xanax before bed on Jan. 8. By 11 a.m. the next day, he said, he had also smoked marijuana early that morning, drank a double shot of Fireball Cinnamon Whisky and taken a dose of Suboxone, a medication used to treat opioid dependence.
Those substances were in his system, police said, as he sped along Bayshore Boulevard in a Pinch A Penny pool supply truck on Jan. 9. Then near the intersection of W Julia Street, according to police, the F-150 pickup swerved off the road and killed a pedestrian, 70-year-old George Gage, who was walking on Bayshore’s raised sidewalk.
Ehas had a blood-alcohol content level of 0.243, investigators said, well beyond the 0.08 level at which state law presumes impairment.
Gage left behind a wife, Susan, and two adult children.
In a wrongful death suit, the person suing for damages would need to be a dependent of the victim, such as a spouse or younger children who lived in the same home.
First, the claim would require proving the negligent person was an employee rather than an independent contractor, said Stetson University College of Law professor Timothy Kaye, who teaches torts, or civil liability law.
Amazon, for example, uses independent contractors for deliveries and often argues it has no responsibility for their accidents while exerting a tight grip on how the drivers work, the New York Times reported in September.
But statements from Pinch A Penny said Ehas was an “employee of a franchised location.”
In a statement issued after the crash, Ehas’ former employer John Burek said Ehas no longer works for the store. John and Pauline Burek own and operate the Pinch A Penny franchisee South Tampa Pool Supplies & Service at 3440 S Dale Mabry Highway, which is located just a mile from the crash scene.
“As a local, independently owned and operated business, we are proud members of the Tampa community and are deeply saddened by the tragic incident that occurred involving one of our former employees," the statement said. "Pinch A Penny of South Tampa maintains an unwavering commitment to the highest standard of safety, and have a zero tolerance policy for the reckless behavior this individual displayed. We intend to cooperate fully with local law enforcement throughout the ongoing investigation. We extend our deepest condolences to the family and friends of those involved.”
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A spokeswoman for the Pinch A Penny corporation declined to respond to questions about the crash or the company’s hiring and substance abuse policies, citing the ongoing criminal investigation. The company was founded in Clearwater in 1975 and has its headquarters there.
Kaye said that a wrongful death lawsuit would target the franchisee and its insurer.
“If they’re an employee, then you can go after the employer,” Kaye said.
Generally, lawyers seeking compensation would only need to prove that the employee was driving the vehicle while on the job.
“We usually get them to admit that the vehicle is owned by the employer and that they gave him permission to drive the vehicle," said Armando Edmiston, a personal injury attorney in Tampa.
On the other hand, he said, if the employee stole a company vehicle and crashed it, the company would be protected from a civil claim.
Similarly, there could be a policy barring the employee from taking a company vehicle home, said Jose Barreiro, a criminal and personal injury attorney in Tampa. If the employee crashes a company vehicle in violation of that policy, that protects the employer. Lawyers will check if the employee signed such a policy when they were hired.
But circumstances can vary, said Kaye. Say an employee was supposed to go somewhere for their job but took a detour, or crashed on their way to a cancelled work appointment. There isn’t always clarity, he said.
“This whole area of law is a mess.”
On top of compensatory damages, a plaintiff might seek punitive damages. In arguing for those, lawyers will try to prove the company acted egregiously.
“If the company doesn’t screen its employees for alcohol at all, that would factor in,” Kaye said.
Barreiro said a case like Ehas’ was “like a worst-case scenario” for a company.
Ehas is being held without bail pending trial, after a judge Wednesday found that Ehas poses a threat to the community were he to be released.