Going Rogue: Claims Involving Intentional Acts Committed by Employees

By: George S. Mahaffey | 9.30.14 | Media

5 Things That Can Make or Break a Case Involving Intentional Acts Committed by an Employee

Recently, we handled a case in Maryland involving claims made against a private school for the intentional acts of one of its employees.  In an effort to recover money damages and reach a possible insurance policy, plaintiffs often assert claims that center on the school’s purported negligence in (1) supervising; and (2) hiring the employee.  When faced with similar claims in Maryland, it’s important at the outset to remember five key things that can make or break the case.

1. Were the Alleged Acts Within the Scope of Employment?

The law in Maryland is clear that an employer may be vicariously liable for the tortious acts of its employees, but only if those acts are within the scope of employment.  Tall v. Bd. of School Commissioners of Baltimore City, 120 Md. App. at 251, 706 A.2d at 667.[i]  “An employee’s tortious conduct is considered within the scope of employment when the conduct is in furtherance of the business of the employer and is authorized by the employer.”   Id.  When faced with a case involving employee intentional torts, the Court of Appeals of Maryland has concluded that:

"To be within the scope of the employment the conduct must be of the kind the servant is employed to perform and must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master."

Sawyer v. Humphries, 322 Md. 247, 255, 587 A.2d 467, 471 (1991).

Stated more simply, the test for whether an employee is acting within the scope of employment “is whether the servant was advancing his master’s interests in doing what he did at the time he did it.”  Rusnack v. Giant Food, Inc., 26 Md. App. at 265, 337 A.2d at 454.[ii]

2. Were the Alleged Acts of a More Personal Nature?

In contrast to the above, where “an employee’s actions are personal, or where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his own interest, even if during normal duty hours and at an authorized locality, the employee’s actions are outside the scope of his employment.”  Sawyer v. Humphries, 322 Md. at 256-57, 587 A.2d at 471 (citations omitted) (emphasis added).  Indeed, “‘[w]here the conduct of the servant is unprovoked, highly unusual, and quite outrageous’ courts tend to hold ‘that this in itself is sufficient to indicate that the motive was a purely personal one’ and the conduct outside the scope of employment.”  Id. at 257, 587 A.2d at 471 (emphasis added).

3. Did the Alleged Acts Involve Sexualized Contact?

Courts interpreting Maryland law specifically have held that employers cannot be vicariously liable for sexual assaults committed by their employees because such conduct is by its nature personal, does not further an employer’s business and, as a matter of law, is not an act within in the scope of employment.  Selective Ins. Co. v. Oglebay, 242 Fed. Appx. 104, 106 (4th Cir. 2007) (“[U]nder Maryland law, the intentional acts committed by Mr. Oglebay [a driving instructor alleged to have sexually assaulted a mildly mentally retarded student] were not ‘within the scope of his employment.’”); Morash v. Anne Arundel County, 2004 WL 2415068, * 5 (D. Md. Oct. 28, 2004) (“Actions taken out of ‘a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer’ and are outside the scope of employment. . . . [Accordingly], Morash’s claim of respondeat superior liability will be dismissed.”) (quoting Lewis v. Forest Pharm., Inc., 217 F.Supp.2d 638, 659 (D. Md. 2002)); Green v. The Wills Group, Inc., 161 F.Supp.2d 618, 626 (D. Md. 2001) (“[U]nder Maryland law, an employer is not vicariously liable for the torts of assault and battery based on sexual assaults by another employee as they are outside the scope of employment.”).[iii]

4. Did the Employer Use Reasonable Care in Hiring the Employee?

When analyzing liability for the hiring of an employee who committed an intentional tort, under Maryland law, “an employer’s liability [for negligent hiring/retention] is not to be reckoned simply by the happening of an injurious event.  Rather, there must be a showing that the employer failed to use reasonable care in making inquiries about the potential employee[.]”  Economides v. Gay, 155 F.Supp.2d 485, 489 (D.Md. 2001) (citations omitted) (emphasis added).  In Economides, the Court granted the defendant’s motion to dismiss, holding:

"Although Plaintiffs allege that Dean Witter demonstrated negligence in hiring and retaining Mr. Gay, they fail to allege a specific instance illustrating that Dean Witter failed to use reasonable care in employing this particular employee.  Consequently, the court shall dismiss this claim."

Id. at 489-90 (emphasis added).

Thus, a dispositive motion will often be successful unless the plaintiff can demonstrate more than bald allegations of negligent hiring.[iv]

5. Did the Employer Have Reason to Believe that the Employee Might Have a Propensity to Engage in Improper Conduct? 

In order to succeed on a claim for negligent supervision, a plaintiff would have to establish, among other elements, that a defendant knew or should have known that the employee in question had a propensity to engage in improper conduct.  Williams v. Cloverland Farms Dairy, Inc., 78 F. Supp. 2d 479, 484 (D. Md. 1999); Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978).  Often, in cases involving the intentional acts of employees, another issue will center on whether the acts were reported.  The acts often go unreported or underreported, with the plaintiff arguing that he/she failed to report the acts for fear of being retaliated against by the employer.  Under Maryland law, however, a generalized fear of retaliation does not excuse a failure to report improper actions and/or sexual harassment on the part of one offended or purportedly injured by the employee.  Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001); Matvia v. Bald Head Island Mgmt., 259 F.3d 261, 270 (4th Cir. 2001); Bush v. Potter, 2009 WL 5177286, No. AW-06-959 *6 (D.Md. Dec. 21, 2009).

The Takeaway

While litigation centering on intentional acts committed by employees often grabs headlines and can be embarrassing – particularly when the acts are sexual in nature – Maryland law generally protects employers who take reasonable precautions.  Generally, in Maryland, an employer is not liable for the intentional acts of an employee that were not committed within the scope of his or her employment.  Further, intentional, sexualized contact (such as abuse) generally can never be within the scope of employment.  As for a claim of negligent hiring tethered to other sexualized contact claims, a plaintiff must show that the employer failed to use reasonable care in hiring the employee in question and that the employer knew that the employee had a history of engaging in the kind of acts called into question.

[i] See also Dhandraj v. Potomac Electric Power Co., 62 Md. App. 94, 98, 488 A.2d 512, 514 (1985); Rusnack v. Giant Food, Inc., 26 Md. App. 250, 261, 337 A.2d 445, 451-52 (1975); Perry v. FTData, Inc., 198 F.Supp.2d 699, 708-09 (D. Md. 2002) (dismissing respondeat superior claim, in part on the grounds that plaintiff “does not allege that FTData knew or should have known of the conduct so as to authorize it or that FTData ratified it”).

[ii] See also Guzel v. State of Kuwait, 818 F.Supp. 6, 10 (D.D.C. 1993) (“As solely a question of common sense, it is difficult to comprehend how any sexual assault could be committed for a purpose other than that of the individual.  Sexual assault is, by its nature, a crime committed for personal reasons.”).

[iii] See also Thomas v. BET Sound-Stage Restaurant/BrettCo., Inc. 61 F.Supp.2d 448,  454 (D. Md. 1999) (dismissing claims against the employer/restaurant for the alleged sexual assault of an employee by the restaurant’s manager, holding “as a matter of law, an employer is not vicariously liable for sexual assault and harassment of its employee, as such acts are outside the scope of employment”); Wolfe v. Anne Arundel County, 374 Md. 20, 34, 821 A.2d 52, 60 (2003) (police officer who made a traffic stop and then raped the female motorist was not acting within the scope of his employment); Tall v. Bd. of School Comm’rs of Balt. City, 120 Md. App. at 257, 706 A.2d at 670 (school is not vicariously liable, as a matter of law, for the sexual assaults committed by a school employee upon a student).

[iv] As the Court of Appeals of Maryland has aptly noted, a complaint in a negligence action must “allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from the breach.” Scott v. Jenkins, 345 Md. 21, 28, 690 A.2d 1000, 1003 (1997) (quotingRead Drug and Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 412, 243 A.2d 548, 553 (1968)) (underlining added).  “Merely stating that a duty existed, or that it was breached, or that the breach caused the injury does not suffice[.]”  Horridge v. St. Mary’s County Dept. of Social Services, 382 Md. 170, 183, 854 A.2d 1232, 1238 (2004).