Employer Liability for Criminal Acts of Employees

In Fletcher v. CFRA, LLC, No. M2016-01202-COA-R3-CV (Tenn. Ct. App. Mar. 8, 2017), the Tennessee Court of Appeals affirmed summary judgment, finding that defendant restaurant owner was not vicariously liable for the actions of its employee.

Defendant owned an IHOP restaurant, and that IHOP hired a dishwasher who was on parole for “aggravated battery and felony firearms convictions.” Plaintiff ate at the restaurant with a friend very early one morning. When plaintiff was leaving the restaurant, the dishwasher believed he had not paid for his meal and followed him to the parking lot. There was no physical confrontation in the parking lot, and plaintiff paid the bill. The dishwasher’s shift had ended, so he called his girlfriend to pick him up from work. According to both the dishwasher and his girlfriend, after they left the IHOP parking lot the car that plaintiff and his friend were driving began following them. They drove to an apartment complex with plaintiff still following, and a physical altercation ensued. There was conflicting testimony about what exactly happened, but at some point the dishwasher jumped into the car plaintiff had previously been riding in and ran over plaintiff two times, severely injuring him.

Plaintiff filed this action against defendant restaurant owner, claiming it was “vicariously liable for [the employee’s] actions and that it also was directly liable for negligent premises security and for negligently hiring and supervising [the employee].” The trial court granted defendant’s motion for summary judgment, holding in part that “[d]ue to the fact that [the employee] was not fulfilling some purpose of the defendant, and due to the unrelated location of the harm,…the agency relationship was, at least temporarily, suspended.” The Court of Appeals affirmed.

Regarding the vicarious liability claim, the Court noted that in order to establish that an employer should be held vicariously liable for the actions of its employee, “the plaintiff must prove that the employee was acting within the course and scope of his employment when the injury occurred.” (internal citation and quotation omitted).  Here, the Court pointed out that the employee was hired as a dishwasher, so “his job duties did not involve interacting with customers, particularly with regard to payment of a bill.” Moreover, the assault in this case occurred after the employee’s shift had ended and he had left work. Analyzing the facts in this case, the Court reasoned:

Once the bill had been paid and all parties had left the IHOP premises, it was not reasonably foreseeable that [employee] and Plaintiff would go to another location where [employee] then would assault Plaintiff. [Employee’s] actions at [the apartment complex] were simply too attenuated from his employment at IHOP for a reasonable jury to conclude that [employee] was acting within the course and scope of his employment when he assaulted Plaintiff. [Employee] was off-duty, off the IHOP premises, and not involved in any action…which reasonably could have been considered to be for the benefit of his employer.

In affirming summary judgment on the direct liability claim, the Court first pointed out that a claim for “negligent premises security” would fail because it had ruled in a previous case “that a business owner has no duty to protect customers from an assault perpetrated by an off-duty employee outside of the business premises.” (internal citation omitted). Moving to the negligent hiring claim, the Court held that “Plaintiff has produced no proof that [employee] was unfit for the job of a dishwasher[.]” The Court stated:

We decline to hold that [defendant] should be held liable for negligent hiring simply because it hired a convicted felon. Such a holding would effectively deter employers from hiring anyone with a felony record. The result would be that convicted felons would have a nearly impossible time finding gainful employment that would allow them to turn their lives around and become productive citizens.

Finally, the Court found that a negligent supervision claim would also fail, as “Plaintiff has shown no injury that occurred during the time period when [defendant] could have supervised [defendant’s] actions,” and that Plaintiff had “produced no evidence showing that such a measure was necessary.” Summary judgment was thus affirmed on all counts.

It’s clear why plaintiff wanted to get the defendant on the hook here—the employee who committed the assault was a previously convicted felon who was now serving another prison sentence, and he most likely had no resources or insurance to cover plaintiff’s damages.   Nevertheless, the facts of this case simply did not support holding the restaurant owner liable.  While I respectfully disagree with some of the language in this opinion, I do not disagree with the result.