LIABILITY FOR THIRD PARTY AND EMPLOYEE MISCONDUCT Presented by
Shannon M. Ragonesi Keating, Bucklin & McCormack, Inc., P.S.
www.kbmlawyers.com
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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).
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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.
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EXCEPTIONS TO THE RULE If an actors 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
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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).
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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.
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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 persons 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.
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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.
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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.
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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.
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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.
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NEGLIGENT HIRING Employer can be liable to third parties for
criminal conduct of employees if it was negligent in hiring that
employee.
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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
employees unfitness at the time of hiring; and 2) the negligently
hired employee proximately caused the resulting injuries.
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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.
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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.
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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 werent asked, the process
appeared sufficient as a matter of law.
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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?
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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.
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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.
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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.
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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.
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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).
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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).
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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.
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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.
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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 moms 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.