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By: Lily Crespo Esq.
Quick takeaway: The possibility of being held liable for wrongs committed by employees even when they are not acting within the scope of employment means that employers must implement strict hiring standards. Background checks, pre-employment drug screening and rigorous scrutiny of applicants throughout the hiring process should be used to protect clients, customers and the employer.
What happened: Missoula couple Dylan and Joselin Turner are taking Albertsons and Tremper Shopping Center to court after an unprovoked man wearing a grocery store vest slashed Dylan Turner’s arm in the parking lot and put him out of work, according to a complaint filed Friday in Missoula County District Court.
What employers can learn from this case: An employer has an obligation to use reasonable care in selecting and retaining employees. An employer violates this duty when it hires or retains an employee that it knows or should know is unfit or incompetent to perform the work required.
Once an employee is hired, it is important for an employer to promptly investigate and respond to any allegations of inappropriate conduct by an employee toward their fellow employees, customers, or clients. This is especially true in the case of schoolteachers, or any other individuals who have frequent contact with minors. Two cases in Minnesota involving illicit sexual contact between a teacher and a minor student illustrate this point. In the first case, Jane Doe 175 v. Columbia Heights Sch. Dist. , the parents of a ninth-grade female student who was allegedly sexually abused by a football coach brought a lawsuit on the student’s behalf against the school district, alleging negligence and negligent supervision. The Minnesota Court of Appeals affirmed the lower court’s grant of summary judgment in favor of the school district. In so doing, the court noted that there was insufficient evidence that the school district was on notice of the football coach’s behavior toward the student, such that the alleged abuse of the student was reasonably foreseeable. The court noted that for purposes of a negligence claim, “there is no general duty to protect another from harm, but a duty to protect arises if there is a special relationship between the parties and the risk is foreseeable.” In determining whether the danger is foreseeable, “‘courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.’”
While the plaintiff in Jane Doe 175 noted that there were “red flags” that should have put the school district on notice of the coach’s behavior, the court found that the incidents cited by the plaintiff, including (1) one instance where she yelled “I love you” to the coach during a football practice, (2) one instance where she and the coach were seen talking in the school parking lot, (3) one instance where she used an office computer in the team’s weight room office, and (4) one instance where the coach was accompanied by a young girl in the weight room on a Saturday, were insufficient to raise a genuine issue as to whether the alleged sexual abuse was foreseeable. Significantly, the school had a policy in its employee handbook that explicitly stated that dating and sexual relationships between teachers and students were prohibited and directed employees to employ safeguards against any such improper relationships.
In a later case, the U.S. District Court for the District of Minnesota distinguished the holding in Jane Doe 175, finding that summary judgment for a boarding school was inappropriate where three students alleged sexual abuse by a former teacher, bringing claims against the school for negligence, negligent supervision, and negligent retention. In Doe YZ, unlike in Jane Doe 145, the court found that several high-level employees at the school “received specific reports concerning [the former teacher’s] inappropriate sexual contact with students, many of which occurred prior to the abuse of these Plaintiffs.” The inappropriate behavior that had previously been reported included the teacher’s holding naked dance parties, patting students’ buttocks, and having explicit sexual discussions with students. The court found that these behaviors “are objectively reasonable indicators of a potentially inappropriate relationship with students.”
Thus, based on these two cases, it is apparent that whether an employer will be held liable for negligence based on an employee’s misconduct toward third parties depends on whether there were red flags that should have put the employer on notice of the inappropriate behavior. Unlike the behavior in Doe YZ, the football coach’s behavior in Jane Doe 175 would not have led a reasonable person to believe that there could be inappropriate sexual contact happening between the coach and a female student. Employers should have policies in place that require the immediate reporting of any inappropriate behavior by employees in the workplace, especially in the area of sexual misconduct, so that they can promptly investigate such incidents and take appropriate remedial measures.
The bottom line: If an employer is not diligent in assessing a worker’s background and that worker harms someone, that employer could be on the line for the worker’s actions. And employers are responsible for the ongoing supervision of their workers and ensuring that their retention does not indicate foreseeable harm to the organization’s workforce or its clients.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.