Dickinson, Mackaman, Tyler & Hagen, P.C.

Employer liability for off-duty tortious conduct

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 08/15/2011 at 12:26 PM by Russell Samson

The August 5, 2011 decision of a Richmond County New York state court judge ruling on a motion for summary judgment in Timoshenko v. Airport Auto Group, Inc., 101670/2009, NYLJ 1202510786572, at *1 (Sup. RI, Decided August 5, 2011) has a tragic foundation, and provides some critical reminders for employers. At approximately 2:30 am, Russel Timoshenko, a New York City police officer, and his partner were on patrol in Brooklyn.  They ran the license plate of a BMW, and learned that the plate was assigned to a different vehicle.  They pulled over the BMW, which had a male driver and two male passengers.  As Officer Timeshenko began to approach the vehicle from the passenger side, passenger Dexter Bostic “opened fire and shot Officer Timoshenko twice in the face.” Officer Timoshenko ultimately died of his injuries.  At the time of the shooting, Mr. Bostic was employed by Airport Auto Group Inc. as a car salesperson; the BMW was owned by Airport Auto.  The litigation, brought essentially by the police officer’s estate, named both Airport Auto Group and several individuals as shareholders / owners of the dealership, alleging negligent hiring of Mr. Bostic.  (Bostic himself was not a named defendant in this particular litigation.)  The dealership sought a summary dismissal of the litigation against it. New York’s law and Iowa’s law in this particular area appear to coincide.  Generally, in the abstract a person has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control. That said, certain relationships – including the relationship between an employer and employee – may give rise to a duty to exercise control. Under the doctrine of respondeat superior, an employer can be held liable for the torts committed by an employee acting within the scope of his or her employment.  Iowa employers should be familiar with this concept as it relates to, for example, claims under the Iowa Civil Rights Act. Clearly under that law, liability may be imposed even if the conduct was not “authorized” by the employer.  (Very few employers “authorize” unlawful discrimination or the creation of a hostile or abusive work environment.) In the New York case, the corporate employer sought summary dismissal of the action against it by providing evidence (probably affidavits or deposition testimony) to the effect that Bostic was not acting within the scope of his employment in shooting the police officer, that it was unaware of any criminal propensity Bostic may have had in the past, and finally that it did not give permission for use of the vehicle and did not permit employees to use the inventory vehicles during non-business hours. In resistance to the summary judgment motion of the dealership, the plaintiff in the New York case presented evidence that Bostic, at the time of his hire, had multiple felony convictions, including two lengthy prison sentences for gun possession and robbery.  They also presented evidence to establish that at the dealership, keys to vehicles in the inventory were available for the use of salespersons and that in the past employees had used – and the dealership knew that employees had used – vehicles during non-business hours.  The New York judge, not unsurprisingly, said, “Clearly, this raises questions of fact with respect to whether defendants acted reasonably in hiring Dexter Bostic without a criminal background check after knowing vehicles in their inventory were routinely used without permission during non-business hours,” and the criminal record “also raises questions as to the foreseeability of Mr. Bostic’s action and precludes summary judgment.” In the abstract, an employer may believe it would not have any exposure if an off-duty employee who is engaging in a criminal act (“grand ‘borrow’ auto” – at least the plates were switched out so the vehicle was not identified as a “dealer” vehicle) shoots a police officer.  Here, the lesson is that there may be some liability where the employer – even if it didn’t condone borrowing of vehicles during off-duty time – didn’t have protections in place, either, to make sure that the policy was in fact followed, and was willing to “give the keys” to a person with convictions for robbery and gun possession.  The question for Iowa employers – and indeed for employers everywhere – is what is actually going on in your workplace (as opposed to what do your policies say), and what kind of exposure might you be creating for yourself?  Do employees have access to the workplace after hours?  And to what does that “access to the workplace” provide access? What you do speaks so loudly that I can’t hear what you say.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

 

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