Liability for Intentional Wrongful Acts Committed by Supervisory Employees
On March 24, 2017, the Seventh Circuit Court of Appeals reversed the judgment of the district court in favor of Defendants, including Home Depot, U.S.A. Inc., and returned the case to the district court for further proceedings. See Anicich v. Home Depot U.S.A., Inc. et. al., 2017 WL 1101090 (7th Cir. March 24, 2017).
This tragic case 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. Plaintiff’s complaint alleges that the defendants jointly employed as a supervisor (“Supervisor”) a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The complaint further alleges that the joint employers failed to take reasonable steps in response to female employees’ complaints and to misbehavior that more senior managers observed. Supervisor’s treatment of one subordinate (“Subordinate Employee”), included verbally abusing her while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips. After five years of that treatment, Supervisor allegedly used his supervisory authority to require Subordinate Employee to come on a personal trip with him – to an out-of-state family wedding – by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her. Subordinate Employee’s mother, acting as the administrator of the estates of Subordinate Employee and her unborn daughter, has sued the employers. The defendant-employers persuaded the district (trial) court that they had no duty to control Supervisor’s behavior. The Seventh Circuit Court of Appeals disagreed, holding that Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. The Court held that the Plaintiff’s complaint plausibly states such claims, and as such, the case should not have been dismissed at the pleading stage.
The general rule in Illinois tort law is that one person has no duty to prevent the criminal acts of another. However, there are several exceptions that limit the general rule. One such exception is that employers have a duty to act reasonably in hiring, supervising and retaining their employees. Van Horne v. Muller, 705 N.E.2d 898, 904 (Ill. 1998). To recover for a breach of that duty, a plaintiff must prove that: (1) the defendant-employer knew or should have known that an employee had a particular unfitness for his/her position so as to create a danger or harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and (3) that this particular unfitness proximately caused the plaintiff’s injury. Van Horne, 705 N.E.2d at 904. The proximate causation element is satisfied when the employee’s particular unfitness rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position. Platson v. NSM, America, Inc., 322 Ill.App.3d 138, 144 (2nd Dist. 2001).
Here, the defendants offered three reasons why the plaintiff did not state a claim based on a duty to act reasonably in hiring, supervising and retaining their employees:
defendants assert that by allowing this case to go past the pleading stage would extend Illinois law and create new and unjustifiable burdens for employers;
defendants argue that that the duty only applies when the employee is on the employer’s premises or using the employer’s chattel, and that neither was true when Supervisor killed Subordinate Employee; and
defendants contend that Subordinate Employee’s injury/death was not foreseeable to a person of ordinary prudence in the employers’ position.
The Seventh Circuit Court of Appeals rejected each of the defendants’ arguments in turn. Specifically, the Court held that:
the plaintiff does not ask the court to impose any new obligations of employers to oversee their supervisory employees by allowing this case to proceed past the pleading stage;
The Court acknowledged that Supervisor was not on the defendants’ premises when he killed Subordinate Employee, nor did he use their chattels (i.e. motor vehicles, power tools, or weapons). Supervisor, did, however, use something else the defendants gave him: supervisory authority over Subordinate Employee. Supervisor threatened to fire her or reduce her work hours if she did not go with him to his sister’s wedding. Supervisor threatened tangible employment actions which he could do only because the defendants made him Subordinate Employee’s supervisor. The Court held that Illinois courts would likely hold that intentional torts committed by the abuse of a supervisory employee’s authority as alleged in the Plaintiff’s complaint states a claim for negligent hiring, supervision, or retention under Illinois law; and
The Court held that to prove “foreseeability”, it is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence; it is sufficient if, at the time of the defendants’ action or inaction, some harm could have been reasonably foreseen. Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193. The Court reversed the district court, finding that “foreseeability” was a question of fact and could not be decided as a matter of law given the circumstances alleged in the complaint. According to the Court, if the plaintiff can prove her allegations at trial, a reasonable jury could find that “some harm” was foreseeable. The plaintiff’s amended complaint recounts how Supervisor’s behavior escalated: from private inappropriate comments and touching, to workplace retaliation, to continual harassment and monitoring, to public outbursts, verbal abuse and physical intimidation. According to the Court, “hearing such evidence, a reasonable jury could easily find that the employers could and should have foreseen that [Supervisor] would take the small further step to violence.”
COMMENTS
The Anicich v. Home Depot U.S.A., Inc. opinion acknowledges that its holding is part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment. Considering a litany of facts alleged in the plaintiff’s complaint, the Court held that Supervisor’s abuse of his supervisory authority was sufficient to state a claim for negligent supervision/retention against the defendants, including Home Depot U.S.A., Inc. Supervisor’s escalating conduct was enough to create a question of fact for the jury to decide whether Subordinate Employee’s injuries/death was foreseeable to a person of ordinary prudence in the employer’s position.
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