Workplace Violence Generates Two Kinds of Torts

In the wake of increased workplace violence, the doctrines of negligent hiring and negligent retention are being invoked by more plaintiffs against employers.\1 These doctrines do not rely upon the scope of an employee's employment, but address risks created when members of the public are exposed by an employer to a potentially dangerous individual.

Typically, when an employee is injured by a co-worker, the employer may be liable for a tort committed by an employee under the doctrine of respondeat superior.\2 Some plaintiffs may invoke the doctrine of negligent entrustment generally in cases where an employer entrusts a vehicle to a person and the employer knows or has reason to know that the driver would cause unreasonable risk of harm to others in the use of that vehicle.\3

But the most attractive claim for a plaintiff is that of a breach under the emerging theories of negligent hiring or retention of a potentially dangerous employee. These torts differ from other theories in that they are based upon the conduct of the employer, not the employee, and the acts of the employee need not be within the scope of employment.\4

The more recent phenomenon is that courts have begun to recognize the negligent hiring and negligent retention as two distinct torts involving different acts of an employer instead of a single theory of liability.

SCARY STATISTICS

Statistics from the National Institute for Occupational Safety and Health are frightening, listing homicide as a leading cause of work-related death in the United States with some 750 workplace killings a year recorded in the 1980s.\5 The National Safe Workplace Institute, based in North Carolina, estimated there were 110,000 incidents of workplace violence in the United States in 1992.\6

The U.S. Bureau of Labor Statistics, which recently began tabulating workplace killings, last year released the 1993 figure of 1,063 homicides on the job, and of those 59 were killed by co-workers or disgruntled ex-employees.\7 The bureau also reported 22,396 violent physical acts on the job in 1993, of which approximately 6 percent were committed by present or former co-workers.\8

There has been a series of highly publicized shootings:

The Dec. 14, 1993 shooting spree at a Chuck E Cheese's fast-food restaurant in a Denver suburb where a fired kitchen worker killed four employees and wounded a fifth.

The January 1993 carnage in which an ex-employee at Fireman's Fund Insurance Co. in Tampa, Fla., opened fire on former colleagues, killing three men and critically wounding two women, then killed himself.

The 1986 attack on an Edmond, Okla., post office where 14 people were killed and six others were wounded by a letter carrier who had been reprimanded.

The May 1993 attack by a disgruntled postal employee at a Dearborn, Mich., post office that left one worker killed.

That same day, in a separate incident, a postal worker in California killed a fellow employee.

Just last month a former postal worker killed four people and injured a fifth in a Montclair, N.J., post office.

During the 18 months before the 1993 shootings, some 500 cases of workplace violence toward supervisors at the U.S. Postal Service were recorded, according to a casualty loss control specialist for Kemper National Insurance Cos. in New York.\9

The Postal Service also recorded 200 cases of violence from supervisors toward employees.\10 Workplace violence in this instance is defined as "physical assaults, threatening behavior or verbal abuse occurring in the work setting."\11

Companies throughout the United States are taking note of their responsibility to check on a potential employee's background. Privacy laws and an openness to hiring rehabilitated ex-convicts, however, often prevent personnel directors from pigeonholing a job applicant as a human time bomb.\12

But the thousands of firings over the years, often in masses, by the Fortune 500 companies have caused many of them to form threat-assessment teams, set up violence hotlines, hire security consultants, install security systems and attempt to assess a person's propensity for violence through testing and applications. The victims and their families, however, have turned to the courts.

HISTORY OF THE TORTS

The torts of negligent hiring and negligent retention developed, as many torts, from the common law. They have their foundation in the fellow servant rule, which operated to relieve an employer from liability when an employee was injured because of the negligence, carelessness or intentional misconduct of a fellow employee when the risk on the job was a usual and ordinary one associated with the employment.\13

Over the years, courts have created exceptions to this harsh rule and have begun to recognize an employer's duty to provide a safe workplace, which includes the duty to hire safe employees. Now, it is estimated that at least 28 states and the District of Columbia recognize the doctrine of negligent hiring.\14

The roots of this doctrine can be traced back to 1894, when the Illinois Supreme Court held that a master has a duty to exercise ordinary and reasonable care in the employment and selection of careful and skillful co-employees.\15

Since then, the tort has expanded to hold an employer liable for injurious acts of an employee if these acts were within the employee's scope of employment.\16 Soon courts were finding an employer liable even when the employee's acts were outside the scope of his or her employment.\17

These early cases generally dealt with repair people or apartment maintenance people with access to dwellings often through master keys.\18 The courts generally found that the landlord knew that the duties of the job carried the employee into the homes of people who may be alone and unprotected and, therefore, the employer was charged with the duty to use reasonable care in selecting an employee reasonably fit to perform such duties.\19

The more recent cases demonstrate the increased sophistication of the workplace. For instance, Illinois courts recently considered two cases under these doctrines, one stemming from sexual harassment charges and the other from the assault of an off-duty store manager of a young boy.

Although reversed on other grounds by the Illinois Supreme Court, in Geise v. Phoenix Company of Chicago, Inc.,\20 the court found that sexual harassment was a foreseeable hazard of a manager's employment and an employer could violate its duty to exercise ordinary care in the hiring of employees by failing to make a "reasonable examination" of a prospective manager's possible history of sexual harassment backgrounds.\21

In Bryant v. Livigni,\22 the appellate court upheld a jury verdict awarding plaintiffs compensatory and punitive damages from the defendant, a grocery store. The significance of that case is that part of the evidence deemed sufficient to support the verdict consisted of the store manager's previous unrelated battery of his son, knowledge which was imputed to the store because of co-workers' awareness of the incident.\23 Together, these cases would seem to impose an affirmative duty upon employers to investigate the history of prospective employees and, possibly, to conduct investigations into off-work activities as well.\24

ARTICULATE OPINION

Modern courts are beginning to recognize a distinction in these two causes of action.\25 One of the most articulate opinions to deal with this subject came from the Court of Appeals of Minnesota.\26 In Yunker v. Honeywell Inc., the court upheld the district court's finding as a matter of law that the employer did not breach its duty in the hiring and supervision of an employee who shot and killed a co-employee off the premises. The court reversed the summary judgment ruling as it applied to the negligent retention claim, however.

There, a Honeywell employee, Randy Landin, worked at the company from 1977 to 1979 until he was imprisoned for the strangulation death of a co-employee. On his release from prison, Mr. Landin reapplied and was rehired as a custodian by the company in 1984.

During this time, he befriended a female co-employee assigned to his maintenance crew. When Mr. Landin expressed a romantic interest, the female employee stopped spending outside time with him and requested a transfer out of Mr. Landin's facility.

Mr. Landin, however, began to harass and threaten her both at work and at home. On July 1, 1988, the female employee found a death threat scratched on her locker door at work. Mr. Landin did not come to work on or after that date, and Honeywell accepted his formal resignation on July 11, 1988.

On July 19, Mr. Landin killed the female employee in her driveway with a close-range shotgun blast. He was convicted of first-degree murder and was sentenced to life imprisonment.

The woman's next of kin brought a wrongful death action against the employer based on theories of negligent hiring, retention and supervision of a dangerous employee. The court immediately dismissed the negligent supervision theory because it derives from the respondeat superior doctrine which, the court recognized, relies on a connection to the employer's premises or chattels.\27

The court went on to recognize that Minnesota case law permitted recovery against an employer under theories of negligence as early as 1889.\28 There, an apartment manager sexually assaulted a tenant and the Minnesota Supreme Court upheld a jury verdict finding the apartment operators negligent in failing to make a reasonable investigation into the employee's background before providing him with a passkey.

The court defined negligent hiring as predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.\29

However, the court in Yunker v. Honeywell distinguished the doctrine based on the scope of the employee's responsibilities associated with the particular job. Mr. Landin's job as a custodian did not expose him to the general public and required only limited contact with co-employees.

"To reverse the district court's determination on duty as it relates to hiring would extend Ponticas and essentially hold that ex-felons are inherently dangerous and that any harmful acts they commit against persons encountered through employment will automatically be considered foreseeable. Such a rule would deter employers from hiring workers with a criminal record and 'offend our civilized concept that society must make a reasonable effort to rehabilitate those who have erred so they can be assimilated into the community.'"\30

The court went on to note that negligent retention of an employee, a separate theory of recovery, is distinguished from negligent hiring, in that the former doctrine "focuses on when the employer was on notice that an employee posed a threat and failed to take steps to insure the safety of third parties."\31 Negligent hiring, on the other hand, focuses on the adequacy of the employer's pre-employment investigation into the employee's background.

Here, the court pointed to a record that contained evidence of a number of episodes in Mr. Landin's post-imprisonment employment at Honeywell that demonstrated a propensity for abuse and violence towards co-employees, including sexual harassment of females and threatening to kill a co-worker during an angry confrontation following a minor car accident.

Other courts surely will follow suit in making such a demarcation of these theories as injured parties increasingly rely upon these tort theories against employers to recover for assaults committed by employees.

Nevertheless, these doctrines are important developments in tort law because they allow some injured parties to recover from their tortfeasors' employers -- even when the employee's conduct is outside the scope of employment, when the occurrence happens off the grounds of the workplace and when the employee is not on duty or even no longer employed at the time of the violence.

__________

FOOTNOTES

1. Erik Larson, "Trigger Happy False Crisis: How Workplace Violance Became a Hot Issue," The Wall Street Journal, p. 1, Oct. 13, 1994.

2. Restatement (2d) of Agency sect. 219 (1958).

3. Woods, Henry, "Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability," 20 Ark. L.Rev. 101 (1966); Restatement (2d) of Torts sect. 505 (1965).

4. Cf., Restatement (2d) of Agency sects. 213 & 505 (1958).

5. Bensimon, Helen Frank, "Violence in the Workplace," Training and Development, 27 (Jan. 1994).

6. Id.

7. Census of Fatal Occupational Injuries, Bureau of Labor Statistics, U.S. Department of Labor, August, 1994.

8. Id. These violent acts were non-fatal incidents which required the injured to recuperate an average of five days off the job.

9. Kurland, Orin M., "Workplace Violence," Risk Management, at 76 (June 1993).

10. Id.

11. Id.

12. Evans v. Morsell, 284 Md. 160, 167, 395 A.2d 480, at 484 (1978).

13. Comment, "The Creation of a Common Law Rule: The Fellow Servant Rule, 1837-1860," at 132 U.Pa.L.Rev. 579 (1984).

14. Petersen, Donald J. and Douglas Masengill, "The Negligent Hiring Doctrine -- A Growing Dilemma for Employers," 15 Employee Relations L.J. at 419 n. 1 (1989-90).

15. Western Stone Co. v. Whalen, 151 Ill. 472, at 484, 38 N.E. 241 (1894).

16. Ballard's Administratrix v. Louisville & Nashville Railroad Co., 128 Ky. 826, 110 S.W. 296 (1908).

17. Missouri, Kansas & Texas Railway Co. v. Texas v. Day, 104 Tex. at 237, 136 S.W. 435 (1911).

18. Mallory v. O'Neil, 69 So.2d at 313 (Fla.1954).

19. See also, Argonne Apartment House Co. v. Garrison, 42 F.2d 605 (D.C.Cir.1930); La Lone v. Smith, 39 Wash.2d 167, at 234 P.2d at 893 (1951).

20. 246 Ill.App.3d 441, 615 N.E.2d 1179 (2d Dist.1993), rev'd on other grounds, 159 Ill.2d at 507, 639 N.E.2d at 1273 (1994).

21. Id., 615 N.E.2d at 1185.

22. 250 Ill.App.3d 303, 619 N.E.2d 550 (5th Dist.1993).

23. Id., 619 N.E.2d at 555-56.

24. Jansen, Gary T., "Employer Liability for Negligent Hiring or Retention Under Illinois Law," Illinois Bar Journal at 602 (Nov. 1994).

25. Lindsey v. Winn Dixie Stores Inc., 188 Ga.App. at 867, 368 S.E.2d at 813 (1988); Foster v. Loft Inc., 526 N.E.2d at 1309 (Mass.App.Ct.1988); Garcia v. Duffy, 492 So.2d 435, at 438-39 (Fla.App.1986).

26. Yunker v. Honeywell Inc., 496 N.W.2d at 419 (Minn.1993).

27. Id., 496 N.W.2d at 422, citing Semrad v. Edina Realty, Inc., 493 N.W.2d 528 at 534 (Minn.1992).

28. Dean v. St. Paul Union Depot Co., 41 Minn. 360, at 363, 43 N.W. 54, at 55 (1889).

29. Id., 331 N.W.2d at 911.

30. 496 N.W.2d at 423, quoting, Ponticas v. K.M.S. Inv., 331 N.W.2d 907, 913 (Minn.1983).

31. 496 N.W.2d at 423.