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EVALUATING EMPLOYERS’ LIABILITY FOR INTENTIONAL TORTS OF EMPLOYEES

By. James A. Creason, Esq. & Larry A. Dunlap., Esq.

 

The area of employer liability has undergone a significant evolution over the last half century.  Along the way, it was, at times, difficult to apply the standards set out by the courts and the legislature.  This is in part because each case is inevitably judged upon its unique facts.  However, particularly over the last decade, courts have departed somewhat from previously-held notions of the type of employee conduct for which employers may be held liable.  The myriad fact situations and the changing notions as to the scope of the employer’s responsibility for the actions of its employees has naturally created uncertainty in assessing the scope of risk involved in insuring employers. 

Because the rules of law respecting an employer’s responsibility for the negligent actions of its employees has remained relatively constant over the past 20 years, it has been relatively easy to apply decisional law in evaluating employers’ exposure for such conduct.  However, such has not been the case with respect to intentional actions by employees.  This article will endeavor to present an overview of the scope of such liability, and to highlight recent trends in order to provide some perspective in evaluating these issues.

It is a commonly-held notion that employers are not liable for intentional acts committed by their employees.  For example, employers often feel that where their employee’s conduct constitutes criminal activity, or even civil battery, the employee is solely responsible.  Such beliefs or assumptions are, however, not necessarily correct, depending upon the circumstances of the individual case.

In fact, in assessing employer liability for the acts of employees, courts look not to whether the conduct of the employee was intentional or negligent as much as whether there is social justification for holding the employer liable.  In other words, whether an employer is vicariously liable for the employee’s intentional conduct will depend upon whether the employee’s act was committed within the course and scope of his employment.  See Goldenwest Broadcasters, Inc. v.  Superior Court 114 Cal.App.3d 947, 956-57 (1981).  The test to be applied is the same, under most circumstances, whether the conduct of the employee was intentional or non-intentional.  Rodgers v. Kemper Construction Co. 50 Cal.App.3d 608 (1965). 

Respondeat Superior Liability


Generally speaking, whether an employer is vicariously liable for the act of an employee turns upon whether the act was either required by, or incident to, employment, or was foreseeable by the employer. Jeffrey E. v. Central Baptist Church 197 Cal.App.3d 718 (1988); Alhino v. Starr 112 Cal.App. 3d 158 (1980).  If either prong of this test is satisfied, the employer is liable for injury caused by the employee, even if the act was willful or malicious.  Alma W. v. Oakland Unified School District, 123 Cal.App.3d133 (1981).  Thus, the issue of whether an employer is liable to respond in damages for the acts of his or her employee depends not upon the nature of the act, itself, but whether at the time the act was committed the employee was acting in the furtherance of the employer’s interests.  Courts have traditionally held that where an employee’s wrongful act was committed within the scope of his employment, the employer should be made to bear the responsibility for the employee’s actions even though wrongful. 

Scope of Employment

As a general rule, an employer is not liable for the intentional torts of its employee unless the tortuous conduct is committed within the course and scope of employment.  Perez v. Van Groningen & Sons Inc. 41 Cal.3d 962 (1986).  This rule of law has been difficult to apply, since each case depends upon its own facts.  At first blush, it would seem that the commission of an intentional tort is never within the scope of an employee’s duties.  However, in numerous cases the employer has been found vicariously liable for such acts.

An employer may be held liable for an employee’s malicious and even criminal wrongs where they fall within the scope of employment. In Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991), the California Supreme Court held that a police officer’s employer was liable for the officer’s acts of stopping a female motorist, placing her under arrest, and driving her home where he raped her.  The court found that the officer’s conduct in raping the motorist was within the scope of his employment.  The court appeared to give much weight to the fact that police officers generally possess considerable authority and control over motorists, and that the abuse of that authority was not a sufficient departure to justify a finding that the conduct was beyond the scope of employment.    

In contrast, however, is the case of John R. v. Oakland Unified School Dist. 48 Cal.3d 438 (1989), where a junior high school student sued the school district, alleging that he had been sexually molested by his teacher while at the teachers’ home for an extracurricular program.  The court held that the molestation was not within the scope of the teacher’s employment, and therefore the school district was not vicariously liable.

As indicated previously, each of these cases turns upon its own facts.  It is therefore sometimes difficult to predict the outcome in any given situation. 

In 1995, the California Supreme Court did provide some guidance, at least in the area of sexual molestation.  In Lisa M. v. Henry Mayo Newhall Memorial Hosp. 12 Cal.4th 291 (1995), an ultrasound technician molested a patient during an examination.  The court held that the technician’s conduct was not within the scope of his employment and that the conduct was entirely motivated by the technician’s own personal interests.  Therefore, the hospital was not vicariously liable.  Interestingly, in the concurring opinion in that case Justice George stated that he would go further and overrule the decision in Mary M. v. City of Los Angeles. 

Employer Ratification

The inquiry into the employer’s vicarious liability is not complete, however, with a determination that the employee acted outside the scope of his employment.  Even where the employee does so, the employer may still be held liable where he or she subsequently “ratifies” the employee’s acts.  Jameson v. Gavett 22 Cal.App.2d 646 (1937); Civil Code 2339. 

Ratification may take many forms, and may be either express or implied.  Fisher v. San Pedro Peninsula Hospital 214 Cal.App.3d 590 (1989).  Ratification has been found to exist where an employer fails to fully investigate the circumstances after being informed of the employee’s actions; where the employer fails to repudiate the employee’s conduct by redressing the harm done; or where the employer fails to discharge the employee after learning of the conduct.

In Coats v. Const. & Gen. Laborers Local No. 185 15 Cal.App.3d 908 (1971), a labor union was held liable for the acts of union employees stemming from an assault and battery during a labor strike.  The court held that the union, with full knowledge of the wrongful conduct of the employees, failed to discharge the employees, thus ratifying their acts.

On the other hand, in Sullivan v. Matt 130 Cal.App.2d 134 (1955), the court held that the action of an employer in not firing an employee who committed a criminal act, did not constitute ratification.  The basis of the holding was that the employee had special skills and experience which were necessary to the employer, and the only evidence of ratification was the failure of the employer to terminate the employee. 

Ratification, like scope of employment, depends on the unique factors present in each case.  No hard-and-fast rules may be formulated.  In conducting investigation in cases involving intentional torts by employees, it is important to develop facts tending to establish that the employee was acting in furtherance of his or her own interests, and that his actions were outside the course and scope of his employment.  Keep in mind that an employer’s vicarious liability will almost never depend solely upon the nature of the employee’s wrongful act. 

       Employer Ratification

The inquiry into the employer's vicarious liability is not complete, however, with a determination that the employee acted outside the scope of his employment.  Even where the employee does so, the employer may still be held liable where he or she subsequently "ratifies" the employee's acts.  Jameson v. Gavett 22 Cal.App.2d 646 (1937); Civil Code §2339.

Ratification may take many forms, and may be either express or implied.  Fisher v. San Pedro Peninsula Hospital 214 Cal.App.3d 590 (1989).  Ratification has been found to exist where an employer fails to fully investigate the circumstances after being informed of the employee's actions; where the employer fails to repudiate the employee's conduct by redressing the harm done; or where the employer failed to discharge the employee after learning of the conduct.

In Coats v. Const. & Gen. Laborers Local No. 185 15 Cal.App.3d 908 (1971), a labor union was held liable for the acts of union employees stemming from an assault and battery during a labor strike.  The court held that the union, with full knowledge of the wrongful conduct of the employees, failed to discharge the employees, thus ratifying their acts.

On the other hand, in Sullivan v. Matt 130 Cal.App.2d 134 (1955), the court held that the action of an employer in not firing an employee who committed a criminal act did not constitute ratification.  The basis of the holding was that the employee had special skills and experience which were necessary to the employer, and the only evidence of ratification was the failure of the employer to terminate the employee.

Conclusion

Ratification, like scope of employment, depends on the unique factors present in each case.  No hard-and-fast rules may be formulated.  In conducting investigation in cases involving intentional torts by employees, it is important to develop facts tending to establish that the employee was acting in furtherance of his or her own interests, and that his or her actions were outside the course and scope of employment.  Keep in mind that an employer's vicarious liability will seldom depend solely upon the nature of the employee's wrongful act.

Early investigation designed to elicit facts which are inconsistent with employer ratification, or which tend to place the employee's conduct outside the scope of employment, may go a long way toward strengthening the employer's position in the litigation.  Although the nature of the investigation will vary from case to case, examining the employer's disciplinary policies and speaking with managerial personnel concerning the course of action taken upon learning of the employee's conduct should be done at an early stage of the investigation.  This may also produce the added benefit of unifying the position of management toward the litigation before claimant's counsel is able to take depositions.

 

 

 

 



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