LIABILITY FOR THIRD PARTY AND EMPLOYEE MISCONDUCT

1. LIABILITY FOR THIRD PARTY AND EMPLOYEE MISCONDUCT Presented by Shannon M. Ragonesi Keating, Bucklin & McCormack, Inc., P.S. www.kbmlawyers.com

2. GENERAL RULE • A private person/City/employer does not have a duty to protect others from the criminal acts of third parties. • See, Hutchins v. 1001 Fourth Ave. Assoc., 116 Wn.2d 217 (1991).

3. GENERAL RULE • Hutchins v. 1001 Fourth Ave. Assoc., 116 Wn.2d 217 (1991). • Passerby was not invitee when robbed. • Vandalism/loitering did not give notice to owner of danger to people passing by the premises. • No generalized duty to provide security measures on premises to protect passersby from third party criminal activity.

4. EXCEPTIONS TO THE RULE • If an actor’s conduct created or exposed another to a recognizable high degree of risk of harm through misconduct which a reasonable person would take into account. • Restatement of Torts § 302B

5. EXAMPLES • Tae Kim v. Budget Rent A Car, 143 Wn.2d 190, 15 P.3d 1283 (2001) (rental company not liable for leaving keys in car on lot). • Parrilla v. King County, 138 Wn. App. 427, 157 P.3d 879 (2007) (bus driver liable for leaving crazy guy on running bus).

6. RECENT CASE LAW • Robb v. City of Seattle, 176 Wn.2d 427, 295 P.3d 212 (2013) (police not liable for leaving live ammo on the street that was later used to shoot victim). • Liability only arises with an affirmative act, not an omission. • Misfeasance entails the creation of a new risk of harm to the plaintiff. On the other hand, nonfeasance consists of failure to take steps to protect others from harm.

7. OTHER EXCEPTIONS • There is no duty to control the conduct of a third person to prevent harm to another unless: • (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or • (b) a special relation exists between the actor and the victim which gives to the victim a right to protection. Restatement of Torts § 315.

8. SPECIAL RELATIONSHIP WITH INJURED PARTY • BUSINESS OWNER AND INVITEE • Nivens v. 7-11, 133 Wn.2d 192, 943 P.2d 286 (1997) • Nature of the duty = (a) take reasonable care to discover acts of harm are being done or likely to be done, or (b) give a warning adequate to enable visitors to avoid harm or protect them against it • The harm must be foreseeable.

9. SPECIAL RELATIONSHIP WITH INJURED PARTY • PARTY ENTRUSTED WITH CARE OF ANOTHER • Niece v. Elmview Group Home, 131 Wn.2d 39, 929 P.2d 420 (1997) (sexual assault of disabled woman by staff member in group home) • It is a duty of reasonable care to protect from all foreseeable harm.

10. SPECIAL RELATIONSHIP WITH ACTOR • GOVERNMENT AND PROBATIONER • Hertog v. Seattle, 138 Wn.2d 265, 979 P.2d 400 (1999) • Municipal probation counselors have a duty to protect others from reasonably foreseeable danger from dangerous propensities of persons under their supervision. • This duty only applies where there is a definite, established and continuing relationship between the defendant and the third party. • One who takes charge of a third person whom he knows or should knew to be likely to cause harm to others if not controlled is under a duty to exercise reasonable care to control the person to prevent him from doing such harm.

11. SPECIAL RELATIONSHIP WITH ACTOR • EMPLOYER AND EMPLOYEE • Bartlett v. Hanover, 9 Wn. App. 614 (1973), reversed on other reasons at (motel manager who was previously robbed on the job was shot and killed). • An employer has a duty to make reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee.

12. NEGLIGENT HIRING • Employer can be liable to third parties for criminal conduct of employees if it was negligent in hiring that employee.

13. NEGLIGENT HIRING • Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 868 P.2d 882 (1994). The plaintiff must prove: • 1) the employer knew or, in the exercise of ordinary care, should have known of its employee’s unfitness at the time of hiring; and • 2) the negligently hired employee proximately caused the resulting injuries.

14. NEGLIGENT HIRING • Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 868 P.2d 882 (1994) • Mere fact there was nothing in employment application to suggest applicant for job as usher at rock concert had prior criminal record did not necessarily relieve employer of its obligation to conduct background investigation or preclude negligent hiring claim.

15. NEGLIGENT HIRING • Compare to Seattle proposed legislation to limit when employers can ask applicants about criminal history as reported in The Seattle Times on June 4, 2013.

16. NEGLIGENT HIRING • Scott v. Blanchet High School, 50 Wn. App. 37, 747 P.2d 1124 (1987). • Teacher had no history that would make him unfit to teach. • The hiring process shows the school reasonable care in hiring. • Although certain questions weren’t asked, the process appeared sufficient as a matter of law.

17. NEGLIGENT HIRING • Look to the practices in the local geographic area and/or the profession for the standard of care for hiring practices. • Should you use social media in background checks?

18. TO FACEBOOK OR NOT TO FACEBOOK • Know the risks of unintentionally learning information such as health, martial status, sexual orientation, etc. • U.S. Congress Proposed legislation such as “The Password Protection Act of 2012.” • Potential violation of the “Stored Communications Act (SCA)” when one accesses electronic information without authorization.

19. TO FACEBOOK OR NOT TO FACEBOOK • On May 21, 2013, the governor signed new state law prohibiting employers from requiring employees or job candidates to provide their social media passwords to the employer. • This law takes effect on July 28, 2013. • This law creates a civil cause of action for violations of the statute.

20. TO FACEBOOK OR NOT TO FACEBOOK • Factors to consider: • Search public content on the internet vs. requiring passwords to search private content. • Separate the social media researcher from the decision-maker.

21. TO FACEBOOK OR NOT TO FACEBOOK • Search in a uniform manner. • Search social media content only after initial screening or interview, or after a conditional job offer.

22. NEGLIGENT SUPERVISION • This claim creates a limited duty to control an employee for the protection of third parties, even where the employee is acting outside the scope of employment. • Niece v. Elmview Group Home, 131 Wn.2d 39, 929 P.2d 420 (1997) (disabled minor sexually assaulted by employee). • LaPlant v. Snohomish County, 162 Wn. App. 476, 271 P.3d 254 (2011) (claim for negligent supervision of police officers who engaged in pursuit where plaintiff was injured was dismissed b/c they were acting within scope of employment).

23. NEGLIGENT SUPERVISION • Employer has duty to use reasonable care to control servant acting outside of the scope of employment if: • Servant is on the premises, or • Is using the chattel of the master; and • The master knows or has reason to know he has the ability to control the servant, and • Knows of the need and opportunity to control the servant. • Peck v. Siau, 65 Wn. App. 285 (1992) (teacher molested student, but there was no indication in his 7 years of employment that he had criminal tendencies).

24. NEGLIGENT SUPERVISION • Betty Y. v. Al-Hellou, 98 Wn. App. 146, 988 P.2d 1031 (1999). • Employer knew of child molestation conviction of construction employee but continued his employment. • Employee met his child victim while restoring vacant apartments for employer. • Employee made a “date” to take victim to the mall. They left premises of work site and employee assaulted victim. • Court held the employee did not use the premises or instrumentalities of the employer to commit the crime so no negligent supervision occurred.

25. NEGLIGENT SUPERVISION • Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 151 P.3d 201 (2006). • Level III sex offender placed to work at a YWCA shelter for women by Labor Ready. • Labor Ready has policy of not checking criminal history of temporary workers. • Sex offender murdered woman. • No evidence she stayed at the YWCA, or that she met worker there, so claim was dismissed.

26. NEGLIGENT SUPERVISION • Ruschner v. ADT, Sec. Systems, Inc., 149 Wn. App. 665, 204 P.3d 271 (2009). • Employer failed to conduct background investigation of criminal record. Missed prior convictions for theft and burglary. • Door to door sales employee met his child victim while making a sales call at her mom’s house. • Employee came back another day and raped victim. • Court held a jury could find that the employee did use the instrumentalities of the employer to commit the crime so it declined to dismiss the case before trial.