Judge Lansing FACTS Honeywell employed Randy Landin from 1977 to 1979 and from 1984 to 1988. From 1979 to 1984 Landin was imprisoned for the strangulation death of Nancy Miller, a Honeywell coemployee. On his release from prison, Landin reapplied at Honeywell. Honeywell rehired Landin as a custodian in Honeywell’s General Offices facility in South Minneapolis in August 1984. Because of workplace confrontations Landin was twice transferred, first to the Golden Valley facility in August 1986, and then to the St. Louis Park facility in August 1987. Kathleen Nesser was assigned to Landin’s maintenance crew in April 1988. Landin and Nesser became friends and spent time together away from work. When Landin expressed a romantic interest, Nesser stopped spending time with Landin. Landin began to harass and threaten Nesser both at work and at home. At the end of June, Landin’s behavior prompted Nesser to seek help from her supervisor and to request a transfer out of the St. Louis Park facility. On July 1, 1988, Nesser found a death threat scratched on her locker door. Landin did not come to work on or after July 1, and Honeywell accepted his formal resignation on July 11, 1988. On July 19, approximately six hours after her Honeywell shift ended, Landin killed Nesser in her driveway with a closerange shotgun blast. Landin was convicted of first-degree murder and sentenced to life imprisonment. Jean Yunker, as trustee for the heirs and next-of-kin of Kathleen Nesser, brought this wrongful death action based on theories of negligent hiring, retention, and supervision of a dangerous employee. Honeywell moved for summary judgment and, for purposes of the motion, stipulated that it failed to exercise reasonable care in the hiring and supervision of Landin. The trial court concluded that Honeywell owed no legal duty to Nesser and granted summary judgment for Honeywell. NALYSIS In determining that Honeywell did not have a legal duty to Kathleen Nesser arising from its employment of Randy Landin, the district court analyzed Honeywell’s duty as limited by its ability to control and protect its employees while they are involved in the employer’s business or at the employer’s place of business. Additionally, the court concluded that Honeywell could not have reasonably foreseen Landin’s killing Nesser. Incorporating a “scope of employment” limitation into an employer’s duty borrows from the doctrine of respondeat superior. However, of the three theories advanced for recovery, only negligent supervision derives from the respondeat superior doctrine, which relies on connection to the employer’s premises or chattels. We agree that negligent supervision is not a viable theory of recovery because Landin was neither on Honeywell’s premises nor using Honeywell’s chattels when he shot Nesser. The remaining theories, negligent hiring and negligent retention, are based on direct, not vicarious, liability. Negligent hiring and negligent retention do not rely on the scope of employment but address risks created by exposing members of the public to a potentially dangerous individual. These theories of recovery impose liability for an employee’s intentional tort, an action almost invariably outside the scope of employment, when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct. I Minnesota first explicitly recognized a cause of action based on negligent hiring in Ponticas in 1983. Ponticas involved the employment of an apartment manager who sexually assaulted a tenant. The Supreme Court upheld a jury verdict finding the apartment operators negligent in failing to make a reasonable investigation into the resident manager’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. DECISION We affirm the entry of summary judgment on the theories of negligent hiring and supervision, but reverse the summary judgment on the issue of negligent retention. AFTERWORD Published reports indicate the Yunker case was settled out of court soon after this decision was handed down. Questions 1. What did the court mean when it said that “negligent hiring and negligent retention are based on direct, not vicarious, liability?” 2. Why did the court reject the negligent supervision claim? 3. Why did the court reject the negligent hiring claim? 4. Why did the court allow the negligent retention issue to go to trial? 5. Gary Weimerskirch, assistant manager at Main Lanes Bowling Alley, walked in on David Coakley, a mechanic at the bowling alley, and Coakley’s girlfriend as they were getting dressed, apparently having just engaged in sexual relations. Coakley then told Weimerskirch that he quit and he began to collect his belongings from the work area. Suddenly, Coakley then grabbed a two-by-four plank, ran toward Weimerskirch, and struck him on the head with it. Coakley’s criminal record included drug and alcohol-related offenses, along with one misdemeanor assault. However, his employer did not have any knowledge of this criminal record. Furthermore, Coakley had not acted violently at work previously. a. What causes of action might Weimerskirch bring against the bowling alley? b. Decide the case. Explain. See Weimerskirch v. Coakley et al., 2008 Ohio 1681 (10th App. Dist. 2008).
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