Home Depot may be liable in tort for employee’s murder by supervisor

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By Joy Waltemath

By Kathleen Kapusta, J.D.

This tragic case, said the Seventh Circuit, which ended in the death and rape of a pregnant employee at the hands of her supervisor, “tests the scope of Illinois employers’ tort liability for intentional torts committed by their supervisory employees against other employees where the employer has been negligent.” Finding that Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury, and predicting that intentional torts committed by the abuse of a supervisory employee’s authority satisfies the requirements of the Restatement (Second) of Torts, and that the complaint here stated a claim for negligent hiring, supervision, or retention, the appeals court reversed the dismissal of the negligence claim brought on behalf of the deceased employee against three joint employers. This, said the court, was “an old story that has been told too many times. Its ending is both shocking and predictable. Alisha’s family is entitled to prove its truth” (Anicich v. Home Depot, U.S.A., Inc., March 23, 2017, Hamilton, D.).

The employee began working for Home Depot as a teenager, working there seasonally until her death six years later. Her supervisor, who had a history of harassing young female subordinates, called her his girlfriend, swore and yelled at her, and called her names like “bitch,” “slut,” and “whore” in front of customers. He would also call and text her outside of work and pressured her to spend time with him alone. When she became pregnant, he reacted angrily.

Murdered, then raped. The employee complained to other supervisors and managers and while they admitted they knew about his behavior, he remained her supervisor. At one point, he was required to take anger-management classes but did not complete the course. When the employee was about seven months pregnant, he asked her to go with him to his sister’s wedding in Wisconsin, telling her he would fire her or reduce her hours if she refused. She went and after the wedding, he took her to a hotel room where he murdered her and then raped her corpse.

Her mother, as the administrator of her estate, sued Home Depot and the companies that managed its garden centers, alleging that as joint employers their negligence caused the employee’s death. Finding that the defendants did not owe her a duty of care, the district court dismissed the complaint.

Employers’ duty. While employers have a duty under Illinois tort law to act reasonably in hiring, supervising, and retaining their employees, the defendants argued they had no obligation to fire or demote employees for their use of inappropriate language or sexual misconduct. Rejecting their contention that creating this obligation would result in intolerable burdens, the court pointed out that employers already have this obligation as both Title VII and the Illinois Human Rights Act impose liability for failing to discipline harassing employees. The plaintiff did not ask it to impose any new obligations on employers, said the court, nor did it “do so by allowing this case to proceed.”

Supervisory authority. Section 317(a) of the Restatement (Second) of Torts, which Illinois has adopted, provides that employers have “a duty to exercise reasonable care” to control employees who are acting outside the scope of their employment if the employees are on the employers’ premises or using the employers’ chattels. In this case, the supervisor was not on the defendants’ premises when he killed the employee, nor did he use their chattel. But, the court pointed out, he used something else they gave him: supervisory authority over the employee.

His threats to fire her or reduce her hours if she did not go with him were “what the Supreme Court calls ‘tangible employment actions,’” the court explained, stating that he could do that only because the defendants made him her supervisor. “We believe,” said the court, “that § 317(a) should be satisfied by a tortfeasor’s use of supervisory authority. We predict that the Illinois Supreme Court would agree, for two reasons: because supervisory authority is in this respect analogous to a chattel, and because other grounds support holding employers liable in tort for misuse of supervisory power.”

Finding no principled reason to hold employers liable for the tortious abuse of their chattels but not for the tortious abuse of supervisory authority, the court reasoned that formalistic adherence to the literal terms of Section 317(a) would produce odd, even arbitrary results. Injuries caused by using a chattel and injuries caused by abusing supervisory authority both occur by virtue of the tortfeasor’s employment and not because they merely know each other through their work, the court stated.

Ground for liability. Citing Burlington Industries, Inc. v. Ellerth, the court noted that the law has moved toward holding employers vicariously liable for their supervisory employees’ intentional torts committed outside the scope of their employment but by abusing their supervisory authority, subject to an affirmative defense. It discussed this, it explained, to show its holding was part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment and only an incremental shift, when there are good grounds to go much further. The court then confined itself to predicting that intentional torts committed by the abuse of a supervisory employee’s authority satisfies the requirements of Section 317(a) and that the complaint stated a claim for negligent hiring, supervision, or retention.

Foreseeability. To succeed on a claim for negligent hiring, supervision, or retention, a plaintiff must demonstrate that the employee’s “particular unfitness … rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position,” and here the supervisor’s “particular unfitness” was his harassing, controlling, and aggressive behavior toward his female subordinates. The defendants argued the employee’s injures were not foreseeable from that conduct because his violent attack was a radical break from even his most offensive prior behavior, and a reasonable employer could not have predicted violence at all since he had not made explicit threats and had not yet hit anyone. However, the court found these arguments presented fact issues that could not be decided on a motion to dismiss.

Some harm. In order to satisfy the foreseeability component, the court observed, it is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence. Rather, it is sufficient if, at the time of the defendant’s action or inaction, some harm could have been reasonably foreseen. Thus, the magnitude of harm the supervisor inflicted on the employee did not by itself render the harm unforeseeable.

Left with the question whether “some harm” was foreseeable to a person of ordinary prudence, the appeals court noted that the district court said as a matter of law, the answer was no. Reiterating that this is a question of fact, the court reversed that decision. “If the plaintiff can prove her allegations at trial, a reasonable jury could find that ‘some harm’ was foreseeable,” it reasoned, observing that the complaint recounted how the supervisor’s behavior escalated: from private inappropriate comments and touching, to workplace retaliation, to continual harassment and monitoring, and finally to public outbursts, verbal abuse, and physical intimidation.

“Hearing such evidence, a reasonable jury could easily find that the employers could and should have foreseen that [the supervisor] would take the small further step to violence,” said the court, reversing the decision of the court below.

Source:: Home Depot may be liable in tort for employee’s murder by supervisor


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