Introduction

Workplace violence is a complex problem with many factors contributing to its occurrence. One of those factors that must be considered in examining this issue is the extent to which an employer has a duty to prevent or control such misconduct. Another important factor is the extent to which the employer could be liable for failure to take certain actions if that failure may contribute to violence committed by an employee against a co-worker or other party.

One way we learn about the standards applied to employers in this arena is by analyzing decisions in cases where employers and their agents have been sued by parties whose injuries were committed by violent employees and who want to hold the employers accountable. The following is a brief summary of several Illinois (and a few other) cases that may prove helpful in our exploration of workplace violence and in our efforts to understand the special problems presented when domestic violence victims and abusers become part of the equation. This memorandum also offers suggestions to employers and legislative proposals which may aid in combating violence.

A. Case Law Summary and Analysis

1. Easley v. Apollo Detective Agency, Inc., 69 Ill.App.3d 920, 387 N.E.2d 1241 (1st Dist. 1979). The Illinois Appellate Court found the employer liable for injuries to plaintiff, who lived in an apartment building for which Apollo provided security services. One of Apollo's armed security guards used his pass key to enter plaintiff's apartment where he assaulted her over a prolonged period of time, threatening to rape and kill her while holding a gun to her head.

The employer's liability was premised upon evidence that the guard had an arrest record and unfavorable references and that Apollo failed to conduct a satisfactory investigation of his background even though state statute requires investigation and licensure for the private detective profession. Had it done so, Apollo would have discovered that the employee lied on his application by saying he had never been arrested. The fact that the detective agency hired him to be an armed security guard and entrusted him with the protection of others supported the verdict against the employer for wilful and wanton hiring.

This case demonstrates the importance of reviewing applications thoroughly and conducting background checks where appropriate for the nature of the job. A "clean" history does not guarantee a model employee, but investigations can often identify security risks. (But see Long v. Brookside Manor (885 S.W.2nd 70), where the Tennessee appeals court reversed a jury verdict in favor of plaintiff who had been beaten by a nursing home employee because, although the nursing home failed to conduct an investigation, it would not have learned anything from a check of prior employment or arrest record that would have presented a warning sign.)

2. Escobar v. Madsen Construction Company, 226 Ill.App.3d 92, 589 N.E.2d 638 (1st Dist. 1992). In this case, the Court refused to find the employer guilty of negligent hiring and supervision of one of its employees who shot a fellow employee. Evidence revealed that Xavier Watkins supervised a number of workers at a construction site and was generally abusive to everybody, including plaintiff Escobar. In addition, Watkins frequently yelled at and threatened to fire workers and was known by some of the construction workers to occasionally use cocaine. The evening prior to the shooting, the parties and other workers were involved in a fist-fight in a bar. The following morning when Escobar, on his way to work, exited his car two blocks from the worksite, Watkins shot him. Escobar claimed that the employer had knowledge of Watkins' violent propensities and was therefore negligent in allowing this violent individual to continue working.

The principal question addressed by the Court was whether the shooting could be deemed Madsen's act under the doctrine of respondeat superior. The Court rejected this suggestion, stating that Watkins was not acting in the scope of his employment when he shot plaintiff; therefore, the shooting could not be considered the act of the employer. Secondly, the Court concluded that plaintiff's injuries could not be attributed to the employer since they were not foreseeable to a person of "ordinary prudence" in the employer's position, and the negligent hiring and supervision were not a "substantial factor in bringing about the harm." Thus, even though the employer may have known of Watkins' conduct on the job, as well as his threat to get his gun from his car, these acts did not combine to make the shooting a "foreseeable consequence" of hiring and supervising Watkins.

Citing earlier case law, the Court defined "proximate cause" as

[O]ne which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. [Citation.] If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent act of a third party, the creation of that condition is not the proximate cause of the injury. [Citation.] The subsequent independent act becomes the effective intervening cause which breaks the causal connection, and itself becomes the proximate cause. Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill.App.3d 360, 361, 97 Ill.Dec. 709, 710, 493 N.E.2d 372, 373.

589 N.E.2d at 639.

Although this definition might be helpful, it is difficult to evaluate precisely how a court would use the definition to measure whether a particular act was the proximate cause of an injury or simply an independent act which intervenes and breaks the causal connection.

3. Carter v. Skokie Valley Detective Agency, 256 Ill.App.3d 77, 628 N.E.2d 602 (1st Dist. 1993). Emma Carter, as administrator of her daughter's estate, sued the Skokie Valley Detective Agency for negligently hiring security guard Terry Harris who kidnapped, raped and murdered the daughter, Emma Hopkins. Plaintiff claimed that the employer's failure to conduct a statutorily required background investigation, which would have disclosed employee Harris' firing by another security guard firm, a record of several misdemeanor convictions and an outstanding arrest warrant, was the proximate cause of Emma Hopkins' tragic fate at the hands of Harris who met Emma at a gas station for which he provided security.

The Appellate Court found in favor of the detective agency, thus reversing a jury verdict for the victim's mother. In its decision, the Court sets out the elements a plaintiff must prove in order to obtain a finding of liability against an employer for the negligent hiring of an employee. To prove such a cause of action, the following must be established:

a. The employer knew or reasonably should have known the employee was unfit for the job in the sense that "the employment would place the employee in a position where his unfitness would create a foreseeable danger to others". 628 N.E.2d at 604.

b. Plaintiff must establish proximate cause by showing that the injuries caused by the employee were "brought about by reason of the employment of the unfit employee." Thus, there must be a causal connection between the employer's negligence and the plaintiff's injuries such that it can be concluded the injury occurred because of the employment. In other words, "the employment itself must create the situation where the employee's violent propensities harm the third person." 628 N.E.2d at 604.

If such elements are shown, an action for negligent hiring may succeed even if the criminal or intentional act committed by the employee occurs outside the scope of employment.

The Court concluded that the detective agency's negligent hiring of Harris was not a proximate cause of Emma Hopkins' injuries and death because there was "no tangible connection" among Harris' violent tendencies, the particular job he was hired to do, and the harm he caused to the deceased. The court expressed concern that its failure to hold in favor of the employer would result in a possibly onerous legal rule that an employer must be an insurer of the safety of every person who happens to come in contact with the negligently hired employee simply because of that person's status as an employee. Perhaps the factual circumstance that resulted in the exoneration of the employer is that the employee security guard was off-duty at the time he went to the Amoco Station where the victim worked as a cashier.

Even though Harris was not on duty, he knew the victim because of his assignment to monitor security at the Amoco Station, and his acquaintance with her had occurred as a result of his employment by the detective agency. Moreover, the day of the fateful kidnaping and murder, Harris arrived at the Amoco Station armed and attired in his uniform and then enticed the victim to give him a ride. It was in the course of that ride that he committed the criminal acts resulting in her death. Given this set of circumstances, it is conceivable that another court would have been disposed to uphold the jury's verdict.

4. Mueller v. Community Consolidated School District 54, 287 Ill.App.3d 337, 678 N.E.2d 660 (1st Dist. 1997). In Mueller, a 15-year-old female manager of a high school wrestling team was sexually assaulted by the school's wrestling coach at the coach's residence to which he had lured the student on the pretext of working on a personnel roster. The student's mother sued the School District, alleging that the District was negligent in failing to conduct the statutorily required criminal background investigation that would have revealed the coach's criminal record and his lack of fitness for a position dealing with minors. (This case reached the Appellate Court following the trial court's dismissal of the plaintiff's complaint with prejudice.)

First, the Court found the plaintiff had sufficiently alleged that defendant breached its duty to conduct a criminal background check; thus, plaintiff satisfied the first and second elements of a negligent hiring cause of action. However, plaintiff failed to allege that the defendant's negligent hiring and investigation was a proximate cause of plaintiff's injury. Secondly, the Court held that plaintiff's complaint sufficiently alleged facts which, if proven, would sustain the School District's negligence in failing to conduct a post-hire investigation to determine whether defendant was competent and fit for his job. Plaintiff also failed in this Count to allege that the negligent supervision was a proximate cause of plaintiff's injury. Plaintiff was allowed to replead these Counts.

The Court also considered whether various immunities provided to public entities such as school districts under Illinois' Tort Immunity Act would apply to these factual circumstances. Rejecting the application of three separate provisions of the Act granting governmental immunity, the Court ruled that the School District's failure to fulfill its statutory duty to investigate its employee "vitiates any immunity it might otherwise have enjoyed" for hiring the wrestling coach. (The Court's ruling that the School District waived its immunities is cause for concern among local government entities.)

Finally, the Court concluded that the School Code provision requiring background investigations is intended to protect a specific class of individuals, namely school children, and thus to protect persons such as the minor student from the very type of injury she received. Therefore, the defendant's argument that this law protects the public at large and imposes no duty to protect individual members of the public, absent a special relationship, was to no avail.

5. Bryant v. Livigni, 250 Ill.App.3d 303, 619 N.E.2d 550 (5th Dist. 1993). The mother of minor Farris Bryant sued Mark Livigni and National Supermarkets, his employer, for injuries Livigni caused her son when, while inebriated, he attacked the four-year-old in the supermarket's parking lot. He also shouted racial epithets and profanity at the mother and both of her children. Although defendant Livigni was off duty on the fateful night, he had visited the store in his capacity as its manager. During this visit, Livigni observed a young man urinating on one of the store's outside walls, then hollered at the young man and followed him to plaintiff's mother's parked vehicle. It was her ten-year-old child who had been urinating, but Livigni pulled four-year-old Farris from the automobile and threw him in the air.

The facts at trial disclosed that Livigni had been working for National for 17 years since he began as a bagger after high school graduation. Livigni was considered a "good employee", although his supervisor was aware of a battery Livigni committed against an employee while Livigni was an assistant store manager. After that employee's Workers' Compensation claim was resolved, National promoted Livigni to manager. Circumstantial evidence was also presented that led the trial court, jury and reviewing Court to conclude that National, through one or more of its supervisors or Livigni's co-workers, knew of an incident in which Livigni had broken his son's collar bone while disciplining him in 1985, and that, after pleading guilty, Livigni was sentenced to two years' probation for aggravated battery to a child; he was serving the probation at the time he attacked four-year-old Farris. Livigni himself testified that he had told co-workers but not his supervisors about the attack upon his son.

Naturally, National protested the guilty verdict against it for the battery, claiming that knowledge of Livigni's violent propensities could not be attributed to it unless it could be proven that persons in supervisory or management positions knew of Livigni's criminal conviction. The Court rejected this argument. What is interesting is the reasoning the Court applied to support its conclusion and the imposition of punitive damages upon National.

First, the Court was scornful of National's having promoted Livigni instead of disciplining him after the injured employee's Workers' Compensation claim was resolved. Secondly, the Court concluded that the knowledge of Livigni's co-workers regarding his criminal attack against his son must be imputed to National, regardless of whether or not that information was actually reported to higher authorities. Thus, such knowledge, though residing only in co-workers, is deemed to be "corporate knowledge."

With regard to National's objection to punitive damages, the Court found little distinction between a claim for negligent or wilful and wanton hiring of an unfit employee and a claim for retention of such an unfit employee after hiring. Where employers act wrongfully, whether by negligence or wilful and wanton conduct, it is "not unreasonable to hold the employer accountable when the employee causes injury or damage to another." Such a cause of action is based not upon a theory of respondeat superior but upon the wrongful conduct of the employer itself.

When a basis exists for finding such wrongful conduct to have occurred, punitive damages are appropriate to punish the offender and deter others from committing like conduct. Interestingly, absent the application of the respondeat superior theory, the employment position of the employee wrongdoer is not relevant. (See also Magnum Foods, Inc. v. Continental Casualty Co., 36 F.3d 1491 (10th Cir. 1994), wherein a punitive damages judgment was entered against employer for its own wrongdoing and not pursuant to vicarious liability in negligently hiring and retaining a convicted felon with a history of sexual harassment at the workplace who raped and sodomized a 16-year-old co-worker. The employer had failed even to discipline its employee for his harassing conduct.)

The employer also argued that it should not be held accountable under respondeat superior since Livigni was acting outside the scope of his employment when committing the "unexpectable" battery against the four-year-old. Although Livigni's actions were "obviously not the normal actions of a store manager," the Court stated it could not say the jury was unjustified in concluding Livigni acted within the course and scope of his employment at the time of the attack.

B. If The Court Is The Messenger, What Is The Message?

Although employers are usually prompted by a complex set of motives that affect decisions regarding how they manage the workplace and their employees, statutory duties imposed upon employers at the state and federal levels and how those duties are interpreted by the courts can significantly influence such decisions. In light of this consequence, what messages should employers take from the cases summarized above?

1. Given the trend toward holding employers responsible for negligent hiring, negligent retention and negligent supervision of employees, employers should not hesitate to conduct thorough background investigations of candidates for employment prior to their hiring. For specific professions, those investigations may need to be more thorough, particularly if the statute requires a pre-employment investigation. Such checks may uncover incidents of violence or other dangerous conduct that may have occurred at the workplace and also in the prospective employee's personal life which could be indicative of a propensity toward violent behavior, and may also disclose that an applicant lied on his/her application. Convictions for domestic abuse are and should be treated as criminal acts reflective of a violent disposition.

In certain professions where employees serve in sensitive positions or have contact with a vulnerable public, periodic background checks of employees might be warranted. It is less costly to spend money on investigations than on defending a lawsuit, even when the employer wins the case.

2. As part of the background investigation, employers should obtain information from previous employers. Illinois now has an Employee Personnel Records Act that provides a certain degree of immunity to employers who give information to prospective employers of a former employee, provided such information pertains to performance evaluations and is part of their record.

3. Maintain thorough records on employees with regard to any misconduct at the workplace, and maintain and consistently enforce a policy of progressive discipline. Such records will allow employers to provide information to subsequent employers regarding the performance and conduct of such an individual in the workplace. In addition, where conduct escalates in degrees of intensity, an adequate record will be available to support a determination to discharge the employee. Alternatively, where intervention occurs early in the disciplinary process and is provided in the form of referrals to appropriate employee assistance programs, a problem employee may be helped to develop insight into his/her difficulties and to change his/her behavior. An employer's efforts to act in this manner could suggest to a court that the employer is responsibly attempting to prevent workplace violence, and may also generate useful information to law enforcement officials that are asked to intervene.

4. Consider that the courts may be inclined to impute the wrongful conduct of an employee to the employer under the theory of respondeat superior or even, as in Bryant v. Livigni, on the theory that the employer itself can be guilty if it acted wrongfully by hiring, retaining or supervising a bad employee. Courts might be more inclined to reach such a conclusion and then impose punitive damages where the conduct is particularly egregious. The Bryant v. Livigni court might have ruled that the employee's wrongful conduct was outside the scope of employment and thus not attributable to the employer under any theory, but it did not do so. On the other hand, courts may be just as likely to characterize egregious conduct as criminal and by definition outside the scope of employment.

5. Consider that certain statutory immunities otherwise available to a public employer and to private employers as well in certain circumstances might not be considered applicable if the Court finds the presence of a special duty to the particular injured plaintiff, whether that special duty be statutory or decisional.

6. Make certain that communication flows freely up and down the chain of command. Unless such communication is available, the decision-makers within the corporate employer entity (whether public or private) may become insulated from information regarding the dangerous propensities of their employees. While the lack of knowledge can sometimes be a successful argument in a lawsuit, an employer cannot count on that argument winning the day if the company is small; if the employer, through its supervisors and managers, routinely ignores obvious signs; if certain persons or groups, especially protected groups, are the ones that are usually injured by the failure to properly supervise and communicate; and/or if written company policy or statute requires education about employee rights and the reporting of incidents of misconduct or maltreatment but the employer then fails to follow through on such complaints or discourages them at the outset.

7. Policies required by law (or by good employment practices) to be specifically articulated and posted should be seriously observed by the employer.

8. Consider this factor as a deterrent: If the employer is found directly liable as a wrongdoer rather than vicariously liable under respondeat superior, punitive damages will be awarded to the plaintiff. Such damages are, in most jurisdictions, uninsured and uninsurable as a matter of public policy. Thus, the financial impact can be substantial when there is no insurer to buffer the blow from a hefty judgment.

9. Minor incidents of misconduct can be a prelude to violence. Employers (meaning the managerial and supervisory personnel in a company) should themselves be trained to recognize signs of trouble brewing beneath the surface and to intervene and discipline appropriately. Referrals to EAP (Employee Assistance Programs) should be considered, possibly even at the employer's cost.

10. With regard to a responsibility to the victim, we have to speculate to some degree because of the dearth of cases dealing with such instances. It is likely, however, that courts will look favorably upon employers who make an effort to protect an employee who is recognizably abused, even if those efforts fail to prevent injury or cause injury to a third party.

C. How Can the Legislature Help Employers Create a Safer Workplace?

The legislature has been and can continue to be instrumental in providing, through specific legislation, incentives that will encourage employers to be more responsible and responsive to their employees. Although some may argue that immunities and other protections that are extended to employers will discourage positive action and the changes that are necessary to improve the workplace environment, it is just as likely that such protections will prompt employers to be more progressive in this area, especially if the fringe benefits include cost savings and greater productivity. In addition, employers often learn painfully and after great expense that statutory or common law immunities, particularly for public employers, can be considered waived by the courts or inapplicable in the circumstances. Even if a public or private employer prevails because of exemptions or the successful application of principal-agency theory, litigation is very costly. Thus, the following should be considered as legislative possibilities:

1. Enactment of an Employee Record Disclosure Act or equivalent, as was recently passed in Illinois. The Illinois Act protects employers and their agents from civil liability for releasing "truthful" written or verbal information about the performance of an employee or former employee in response to an employment reference inquiry. The employer is presumed to be acting in good faith in providing such information but the employee may overcome the presumption. The presumption shields the employer from consequences of the disclosure. Employers who are found guilty of negligent hiring and negligent retention when an employee becomes violent and that employee's prior work record, if accessible, would have shown a violent history, will welcome such legislation.

Findings of negligence have been made by courts even when the employer was not told about the history upon actual inquiry. The disclosure of information about a former employee's potential for violence or violent or aggressive acts is likely to be more forthcoming if employers' concerns about accusations of defamation or intentional interference with employment opportunities are lessened.

2. Incentives to employers who:

• participate in training on issues of violence in the workplace and domestic abuse as it affects the workplace
• provide training to their employees on the same issues
• provide EAP programs as part of the health care benefits package

These incentives could be in the form of grants, direct payments or tax or other "credits."

3. Creation of State-funded programs or projects to develop public education campaigns focusing on the issues of Violence and Domestic Abuse as they impact the work lives of our citizens.

4. Creation of a task force or commission on domestic violence in the workplace.

5. Statutory immunities for employers when they take certain security and other precautions to protect abused employees and the rest of their workforce against the threats of an abuser, but those measures are either inadequate or themselves unintentionally cause injury.