Respondeat Superior/Vicarious Liability
Many intentional torts are committed by employees working for a corporation or a company while on the job. For example, in the typical case, a security guard at a hotel or apartment complex may use excessive force on a customer or tenant resulting in injury. Less typical are those cases where a clerk at a convenience store, for example, gets in a fight with a customer causing injury to that customer. Traditionally, such intentional torts were said to be “independent ventures” or even “frolics” on the part of the employee that did not expose the employer to liability under a theory of Respondeat Superior. However, that view has evolved and today, Nevada courts are more inclined to find liability even where the employee’s conduct seems on its face to be a result of his own volition. This article is a survey of the law concerning Respondeat Superior and Intentional Torts in Nevada.
As an introduction, regarding Respondeat Superior and Intentional Torts in Nevada, generally, an employer is liable for an assault and battery committed by an employee when the employee is acting in the course and scope of his employment. That is, while the employee is engaged in the service and work of his employer, and he does an act personal to himself that is so inextricably intertwined with his service to his employer, his doing so does not break the employment relationship so as to release the employer from responsibility for the employee’s conduct.
However, when an employee departs from the business or service of his employer, and pursues some activity or object not for his employer and not reasonably embraced within his employment, the employer is not responsible for anything done or not done in such activity.
The following is a discussion of the case law applicable in this area of law.
J. C. Penney Co. v. Gravelle, 62 Nev. 439, (1945)
On June 12, 1943 one Whitworth, an employee of J.C. Penny Co., was attending to his duties in the store when another employee informed him that a man had walked out of the store with clothes belonging to the store with yet another employee, a woman, following closely behind that man. Whitworth was further informed that the female employee was requesting his aid. Whitworth immediately went in pursuit of the man and caught up to him near a gas station where Whitworth put his hand on the man’s shoulder. The man threw the clothes in the air and then began running around vehicles parked at the gas station with Whitworth in hot pursuit, crying to anyone that could hear to help him apprehend the man that stole clothes from J.C. Penny’s store.
At this point Plaintiff intervened and either grabbed Whitworth by the arm or stepped between Whitworth and the thief demanding to know what was going on. As a result of Plaintiff’s intervention, the thief ran away from Whitworth and successfully fled the scene. Whitworth and Plaintiff began to argue with Whitworth protesting that but for Plaintiff’s intervention Whitworth would have apprehended the thief. Whitworth then gathered up the stolen clothes and began heading back to the store with Plaintiff following him, the two arguing the whole way back.
Once the parties entered the store, Whitworth handed the recovered clothes to the store manager and turned to deal with Plaintiff. A physical altercation ensued wherein Plaintiff was injured. Subsequently, Plaintiff filed suit against J.C. Penny seeking to hold it responsible for Whitworths conduct.
At trial, Whitworth testified as to the nature of his employment by the J. C. Penney Company. In addition, as to why he went in pursuit of the thief, Whitworth stated: “I simply didn’t like anyone walking out of the store with merchandise that didn’t belong to them if I saw him.” And again stated: “I only felt it my duty to take the merchandise and put it back in stock, where it belonged.” “Q. You felt it was your duty to do so? A. That I should see to it, yes, sir.”
The question before the court was whether it was within the scope of Whitworth’s employment to engage in a physical altercation with Plaintiff as shown by the latter’s proof?
In determining the applicable law, the Nevada Supreme Court cited Robinson v. Sears & Roebuck Co., 216 N.C. 322, 4 S.E.2d 889, 890, a case where a corporation and its servant were jointly sued for an assault and battery committed by the latter. There, the Plaintiff was involved in an altercation with the manager over the latter’s language to a female employee. As a result, Plaintiff and the manager went out the back door and engaged in a fist fight. The court held “that where an assault by an employee is purely personal, having no connection with the employer’s business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer.”
The Court found that in the above case, as in the instant mater, the assault was over a personal matter arising not out of the employer’s business or in the furtherance of its interests, but out of anger engendered by Plaintiff’s conduct toward the employee on the street. In supporting its finding, the Court noted section 235, American Law Institute Restatement on Agency, which states: “An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to services on account of which he is employed.”
The Court distinguished the instant matter from a case cited by Plaintiff in support of his position, Forrester v. Southern Pac. Co., 36 Nev. 247, (1913). There, it was held that the company was responsible in exemplary damages for the acts of its servant in wrongfully ejecting a passenger from its train for the nonpayment of a fare. In distinguishing the two cases, the Court noted that the servant was acting within the scope of his employment, and the action was based upon a tortious breach of a carriage contract, and judgment of compensatory and punitive damages rendered on that ground. Whereas, in the instant case, the action against the employer is based on the tort of a servant acting outside the scope of his employment.
In determining the outcome of the instant matter, and at the outset, the Nevada Supreme Court noted that by the time the altercation had occurred the “chase was over, the hue and cry had ended, the quarry had escaped, the plunder had been recovered and was on its way back to the store; in fact, it had been handed over by Whitworth to the assistant manager of the company. The employer was no longer concerned”.
The Court noted that Whitworth had discharged his duty to his employer with the exception that he had not captured the thief. Whitworth blamed that fault on Plaintiff. As a result, Plaintiff and Whitworth engaged in war of words that ultimately led to the physical altercation that became the basis for the ensuing lawsuit.
In determining whether the fight that ensued Whitworth was acting for his own purposes or the purposes of his employer, the Court found that Whitworth’s mental state at the time of the fight was pertinent to the inquiry. According to the Court, the inquiry turned on the question “how can it be inferred that he was promoting the interests of the employer in inflicting those injuries?” In answering, the Court found that the act was not done to recover the property or to catch the thief, but apparently done to punish Plaintiff for annoying him. The Court further found that the fight was unrelated to Whitworth’s original purpose, on behalf of J.C. Penny, and was instead an independent adventure engaged on his own account, in no way arising from a sense of duty to his employer.
The Court concluded that although it was true Whitworth was then in the employ of J.C. Penny, he was not employed to commit an assault and battery. Moreover, the Court ruled that the fight at issue was clearly disconnected from the line of his duty to his employer and were not within any express authority given by the company, nor within the scope of Whitworth’s duty or employment, the principle of respondeat superior does not apply.
Prell Hotel Corporation v. Antonacci, 86 Nev. 390, (1970)
The Nevada Supreme Court did not revisit the issue of intentional torts committed by employees for another 25 years, when a guest of the Alladin Hotel and Casino was knocked unconscious by a “blackjack” dealer in the course of a game. The guest was knocked unconscious and subsequently sued the casino.
In Prell, Plaintiff was an invited guest of the Alladin Hotel and Casino where he was playing “21” at the time of the incident. During the game, Plaintiff was served several free drinks to encourage his continued presence and participation in gaming. When Plaintiff lost his money, he became angered and called the dealer a nasty name. The dealer dealt one card to each player all the way round, and then hit Plaintiff spontaneously, and with no warning whatsoever. The dealer did not leave his position behind the “21” table to accomplish the assault and battery.
Initially, in discussing intentional torts and the theory of “Respondeat Superior”, the Court noted that early doctrine would not admit that a willful tort could be within the scope of employment. The Court deemed this position inflexible and arbitrary and noted that the view has gradually been eroded, and the concept of scope of employment enlarged. The Court then held that if the employee’s tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable, citing Chapman v. City of Reno, 85 Nev. 365, (1969) and J. C. Penney Co. v. Gravelle, 62 Nev. 434, (1945). However, the Court held that where the willful tort is committed in the course of the very task assigned to the employee, liability may be extended to the employer, citing Forrester v. Southern Pacific Co., 36 Nev. 247, (1913) and Quigley v. Central Pac. Ry. Co., 11 Nev. 350 (1876).
The Court held that “Oral abuse or provocation, independent of any overt hostile act, however opprobrious or insulting, does not justify an assault and battery”. Citing Haman v. Omaha Horse Ry. Co., 52 N.W. 830 (Neb. 1892). Conversely, when accompanied by an overt hostile act, such oral abuse may amount to a challenge to fight and constitute consent. Rest. Torts 2d ed § 69. The Court noted that Defendants requested to set aside the judgment for reasons of policy, claiming that since it is a misdemeanor for one by word, sign or gesture to willfully provoke an assault the Court should not allow one guilty of a criminal offense to profit from his own wrong. However, the Court noted that the purpose of that statute is to protect the public from a breach of the peace, rather than to provide a defense in a civil action between the participants.
Moreover, the Court found that an assault and battery is also a misdemeanor; thus, both participants, the guest and the employee, each committed a criminal offense for which either could have been prosecuted. The Court found that under the circumstance, that fact alone does not foreclose civil relief to the person damaged. The Court concluded that:
Name calling does not produce physical damage and the attendant expense. A battery may result in such damage and expense. The more significant policy is to prevent physical damage resulting in monetary loss. Hurt feelings caused by language must be of lesser significance in the affairs of life and our desire for an orderly society.
Consequently, the decision of the District Court was affirmed.
Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, (1996)
The issue remained undisturbed until the 1990’s, when the Court was forced to confront the issue of what it meant to be an employee in the era of independent contractors and corporate subsidiaries. In 1992, Sun Harbor, which operated the Budget Suites, contracted with Bigelow Management to provide security to its apartments. In January of 1993, a security guard provided by Bigelow shot a tenant 18 times killing her after the woman ended an extramarital relationship the two were engaged in. The woman’s husband sued Sun Harbor who initially claimed that the security guard was not an employee and so they could not be held liable for his tortious conduct. The facts are provided in detail below.
Thamar was born in Morocco in 1956 and lived there until he moved to the United States in 1982. Thamar was hired by Bigelow Management (Bigelow) as a security guard and was provided to Sun Harbor in the same capacity. Elaine Olsen, the manager of Sun Harbor, claimed that because Bigelow hired and paid him, Thamar was a Bigelow employee.
However, the record indicated that Thamar was provided with a free apartment at Sun Harbor as part of his compensation package, but it was unclear whether the apartment was paid for by Bigelow or Sun Harbor. The issue of which entity was paying for Thamar’s services and apartment was further confused by the fact that Robert Bigelow was the president and treasurer of Bigelow and was also the treasurer of Sun Harbor, and the address for service of process for both corporations was the same.
Thamar had a history of aggressive behavior which allegedly resulted in his being terminated from other security jobs. Thamar worked at Jerry’s Nugget and Vegas World but was fired from both jobs for insubordination and aggressive behavior at both jobs. Additionally, Thamar lied on his job application with Bigelow, declaring that he was in the “bomb unit” of the Moroccan Marine Corps from 1977 through 1981 though no such unit existed. Finally, Thamar was a convicted sex offender. In 1985, Thamar pleaded no contest in Wisconsin to one count of indecent exposure, was incarcerated in county jail for sixty days, and placed on probation for two years. Under Nevada law Thamar was required to register with the police but did not.
Thamar’s aggressive behavior also extended to his relations with Vernon, and had threatened Vernon on several occasions. A second incident occurred on January 26, 1993, when Londa, who had briefly moved into Thamar’s apartment, was moving her things out of Thamar’s apartment and back into Vernon’s apartment after reconciling with Vernon. Thamar came downstairs from his apartment, pointed at Vernon with his finger, and threatened to shoot him.
Vernon made efforts to inform Sun Harbor management of the situation between himself, Londa, and Thamar. On January 23, 1993, Vernon met with Olsen and told her that Thamar and his wife were having an affair and that he wanted Olsen to make Thamar stop pursuing the relationship. However, Vernon did not tell Olsen about the first threatening incident that occurred in the parking lot. Olsen stated that she would relate Vernon’s concerns to Thamar, but the record does not indicate if she did so. Additionally, in response to this discussion, Olsen sent Greg Aliano, another Sun Harbor security guard, to Vernon’s apartment to further discuss the situation and to gather more information.
On January 27, 1993, Vernon met with Olsen a second time and told her that he and his family were vacating the apartment and also told her again of the increasingly volatile situation between Thamar and himself. For the first time, he told her of Thamar’s threats and of the police responding to Sun Harbor the night before. Vernon also stated that several of his wife’s items still remained in Thamar’s apartment, that he wished to retrieve them, and that he was going to have the police escort him when he retrieved the items in order to avert a violent situation. Olsen stated that the police were not required and that she would provide Sun Harbor security personnel to help Londa get the rest of her belongings.
On January 27, 1993, after his meeting with Olsen, Vernon began moving the family’s belongings into storage in anticipation of moving into a new apartment complex. Vernon dropped Londa off at work and made several trips between the apartment and the storage facility. Vernon called Londa at work and informed her that they would be staying in a hotel for a few days. Londa indicated that she would be working all day and never stated that she was going to Thamar’s apartment. Without Vernon’s or Olsen’s knowledge, Thamar picked Londa up from work around 1:00 p.m. and took her back to his apartment. At the apartment, Londa told Thamar that the affair was over and that she was returning to her husband, and Thamar became incensed. He got his gun and shot Londa eighteen times, stopping to reload several times.
Thamar then used his radio to call Sun Harbor security to tell them what had happened. Aliano was off duty at the time of the shooting and heard Thamar’s call over his radio. He ascertained and went to Thamar’s location, handcuffed Thamar, and called the police. Thamar was later convicted of second degree murder with the use of a deadly weapon.
Vernon and Andrew originally sued only Sun Harbor for the wrongful death of Londa but later amended the complaint to include Bigelow as a second defendant. The causes of action against Sun Harbor for respondeat superior, negligent hiring, training, and supervision, and breach of duty of care were all dismissed on summary judgment. The order granting summary judgment contained no findings of fact or conclusions of law.
The Court noted that an employer can be vicariously responsible only for the acts of his employees not someone else. Furthermore, the Court held that respondeat superior liability attaches only when the employee is under the control of the employer and when the act is within the scope of employment. Molino v. Asher, 96 Nev. 814, 817, (1980). Moreover, “This element of control requires that the employer ‘have control and direction not only of the employment to which the contract relates but also of all of its details and the method of performing the work. . . .'” Kennel v. Carson City School District, 738 F. Supp. 376, 378 (D. Nev. 1990) (quoting 53 Am. Jur. 2d Master and Servant § 2 (1970)). Therefore, the Court held that an actionable claim on a theory of respondeat superior requires proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor’s employment. Consequently, the first question addressed was whether or not Thamar was an employee of Sun Harbor.
Was Thamar an employee of Sun Harbor?
In answering that question, the Court held that where a property owner hires security personnel to protect his or her premises and patrons, that property owner has a personal and nondelegable duty to provide responsible security personnel. Therefore, the Court concluded, as a matter of law, that the security personnel are the employees of the property owner, even if the property owner engaged a third party to hire the security personnel.
The Court further held that, in such a situation, an employer-employee relationship will be found without evaluating whether the security personnel were under the control of the property owner, noting that the control analysis is only one of the methods available to establish such a relationship. As an aside, the Court noted that it made no determination on the issue of whether Thamar was an employee of Bigelow, noting only that it is possible for an employee to be simultaneously under the control of two different employers. Citing Gulf Oil Corp. v. Williams, 642 S.W.2d 270, 272 (Tex. Ct. App. 1982) (concluding that it is possible for two entities to have joint control over an employee).
In reaching its conclusion, the Court followed the ruling in Peachtree-Cain Co. v. McBee, 170 Ga. App. 38, 316 S.E.2d 9 (Ga. Ct. App. 1984), aff’d, 254 Ga. 91, 327 S.E.2d 188 (Ga. 1985). In Peachtree-Cain Co., the Peachtree Company owned a shopping center called the Peachtree Center. Peachtree Center Management Company, a separate corporation, managed the Peachtree Center and contracted with American Building Maintenance Company to provide and manage security personnel for the property. All of these parties were sued by a patron who claimed to have been falsely arrested by a security guard. Peachtree Company moved for summary judgment on the ground that it could not be liable for the intentional torts of the independent security agent. The court denied the motion for summary judgment, concluding that:
As owners of the Peachtree Center complex that had undertaken to obtain security services, their duty to their invitees to provide responsible agents was personal and non-delegable, and thus it did not matter that the owners had an additional filter, i.e., the Peachtree Center Management Company, between themselves and the actual security guard. Because that duty was personal and non-delegable, a recovery based upon a breach of that duty would not constitute imposition of liability without fault. To hold that the appellants [***12] are immune from vicarious liability in these cases would, as noted above, present “opportunities for gross injustice” which we will not here sanction.
Peachtree-Cain Co., 316 S.E.2d at 11 (citations omitted); see Zentko v. G.M. McKelvey Co., 54 Ohio L. Abs. 529, 88 N.E.2d 265, 268 (Ohio Ct. App. 1948) (stating that where an owner of an operation or enterprise undertakes to obtain security services, the owner’s security duties are personal and nondelegable, and where the owner arranges for and accepts the services, the relationship of master and servant exists). Adams v. F.W. Woolworth Co., 144 Misc. 27, 257 N.Y.S. 776, 781 (App. Div. 1932) (“A store owner who places a detective agency on his premises for the purpose of protecting his property by various means, including arrests, should not be immune from responsibility to an innocent victim of a false arrest made by the detective agency, even as an independent contractor.”); Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882, 888 (Tex. Ct. App. 1976) (“because of the ‘personal character’ of duties owed to the public by one adopting measures to protect his property, owners and operators of enterprises cannot, by securing special personnel through an independent contractor for the purposes of protecting property, obtain immunity from liability for at least the intentional torts of the protecting agency or its employees.”); see also Malvo v. J.C. Penney Company, Inc., 512 P.2d 575 (Alaska 1973); Noble v. Sears, Roebuck and Co., 33 Cal. App. 3d 654, 109 Cal. Rptr. 269, 274 (Ct. App. 1973); Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 861 n.12 (D.C. 1982) (recognizing the rule but not reaching the issue for other reasons); Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362, 366-67 (N.C. 1968); Moore v. Target Stores, Inc., 571 P.2d 1236, 1240 (Okla. Ct. App. 1977).
Similarly, the Court held that in the instant case, Sun Harbor undertook to obtain security services, a personal and non-delegable duty, and it did not matter that the owners of Sun Harbor had an additional filter, i.e., Bigelow, between themselves and the actual security guard. Additionally, Sun Harbor arranged for and accepted the security services of Thamar, and therefore the relationship of master and servant (or employer-employee) existed between Sun Harbor and the security guards. Having resolved the issue of employment, the Court next addressed whether the act occurred within the course and scope of his employment.
Did Thamar’s intentional tort occur within the course and scope of his employment?
Generally, whether an employee is acting within the scope of his or her employment is a question for the trier of fact, but where undisputed evidence exists concerning the employee’s status at the time of the tortious act, the issue may be resolved as a matter of law. Evans v. Southwest Gas, 108 Nev. 1002, 1004, (1992). The Court held that in order for an employer to be liable for the intentional tort of an employee, that tort must occur within the scope of the task assigned to the employee. Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399, 400 (1970). “If the employee’s tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable.” Id. (holding that an employer was vicariously liable when the employee, a blackjack dealer, hit a customer in the face while dealing a game because the assault occurred within the scope of the task assigned to the dealer, that of dealing blackjack). But see J.C. Penney Co. v. Gravelle, 62 Nev. 434, 449-50, 155 P.2d 477, 481-82 (1944) (concluding that an on-duty security guard acted outside the scope of his employment when he punched Gravelle because Gravelle had prevented the guard from catching a shoplifter; the guard’s acts were done to punish Gravelle for his interference and not in order to catch the thief or to retrieve the stolen merchandise, and the guard’s actions were clearly disconnected from the line of his duty to his employer).
The Court found that Vernon produced evidence that at the time Thamar shot Londa, he was still actively guarding the premises even though he was off duty, and that the off-duty security officers carried radios and responded to emergency situations. Furthermore, the Court noted the record indicated that after Thamar shot Londa, he used his radio to call the Sun Harbor security dispatcher to report that his girlfriend had been shot, and Aliano, an off-duty security guard, heard the call on his radio, went to Thamar’s location, and handcuffed Thamar until the police arrived.
Furthermore, Olsen’s affidavit presented evidence that off-duty security guards were not required to remain in radio contact with Sun Harbor or respond to emergency calls, and that their free time was their own. This indicates that when Thamar was off duty he was no longer engaged in the business of or service of his employer and Sun Harbor would not be liable. The Court held that such conflicting evidence regarding whether Thamar was still acting within the scope of his employment when he killed Londa created a genuine issue of material fact, and concluded that it was improper for the district court to grant summary judgment on the respondeat superior cause of action.
Wood v. Safeway, Inc., 121 Nev. 724 (2005)
The latest case reaching the Nevada Supreme Court on the issue of intentional torts committed by employees is Wood v. Safeway. There, Doe, a mentally retarded adult, worked at Safeway as a clerk. Ronquillo-Nino met Doe while he worked as a nighttime janitor for Action Cleaning, the company Safeway contracted to provide janitorial services. Doe alleged that Ronquillo-Nino raped her several times while the two worked at Safeway and, consequently, Doe’s guardian’s filed suit on her behalf attempting to hold Safeway liable for Ronquillo-Nino’s tortious conduct.
Safeway hired Doe through the store’s special hiring program to work as a part-time courtesy clerk. As a courtesy clerk, Doe bagged groceries, cleaned and replenished supplies at the check stands, cleaned the break room and various public areas of the store, and collected shopping carts from the parking lot. Safeway paid Doe $ 5.45 an hour, and she received regular paychecks made out in her name. Doe’s employment duties required her to be in many areas of the store, including the outside areas, at various times. Doe was working the swing shift (4 p.m. to midnight) at the time of the assaults.
Doe met Ronquillo-Nino through her employment at Safeway. Ronquillo-Nino worked as a nighttime janitor for Action Cleaning, a cleaning subcontractor hired by Building One Service Solutions (Building One) to provide on-site cleaning services at the Safeway store where Doe worked. Under its contract with Safeway, Building One is an independent contractor. On three separate occasions Ronquillo-Nino sexually assaulted Doe while she was at work on the Safeway premises. The first assault occurred in a cleaning supply room, and the second and third assaults occurred behind a dumpster while Doe was outside collecting shopping carts from the parking lot. Ronquillo-Nino pleaded guilty to one count of attempted sexual assault.
As a result of the sexual assaults, Doe became pregnant and gave birth to a healthy child, who is now under the care of Doe and Alan and Judy Wood. The Woods and Doe, through her guardian ad litem, (collectively Doe) filed a complaint alleging five causes of action against Safeway and Action Cleaning: (1) negligent failure to train employees and maintain a safe work environment; (2) negligent selection, appointment, training, supervision, and retention of Emilio Ronquillo-Nino; (3) sexual harassment; (4) negligent infliction of emotional distress; and (5) due to the above negligent acts, the Woods are now responsible for the care and maintenance of Jane Doe and her child, Baby Doe.
Safeway and Action Cleaning filed separate motions for summary judgment. The district court subsequently granted Action Cleaning’s motion for summary judgment, concluding that Doe’s claims were barred because Ronquillo-Nino’s intervening criminal acts were a superseding cause precluding liability and because, under NRS 41.745, Action Cleaning was not liable for the intentional torts committed by one of its employees. Doe filed a motion for reconsideration, which the district court denied. Doe now appeals the district court’s orders granting summary judgment in favor of Safeway and Action Cleaning.
The district court granted summary judgment in favor of Action Cleaning based on dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the intentional torts of an employee, and (b) Ronquillo-Nino’s intervening criminal act was a superseding cause that relieved Action Cleaning of liability. Doe challenged both conclusions on the basis that Ronquillo-Nino’s acts were foreseeable given that Action Cleaning’s workforce is highly transient, untrained, largely unsupervised, and “comprised almost entirely of” illegal aliens.
Employer Liability for Intentional Torts of Employees
NRS 41.745 addresses specific circumstances in which an employer is not liable for harm or injury caused by an employee’s intentional conduct:
1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:
(a) Was a truly independent venture of the employee;
(b) Was not committed in the course of the very task assigned to the employee; and
(c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment.
For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.
(Emphasis added). The Court noted that before NRS 41.745 was enacted, the Court had stated that an employee’s intentional conduct relieves an employer of liability when “the employee’s tort is truly an independent venture of his own and not committed in the course of the very task assigned to him.” Citing Prell v. Antonacci, supra. Furthermore, the Court also noted that if “the willful tort is committed in the course of the very task assigned to the employee,” then it is appropriate to extend liability to the employer. Id. The Court found that those two observations are essentially codified in NRS 41.745(1)(a) and (b).
In Wood, Doe argued that Action Cleaning failed to produce any evidence to meet the first two statutory elements, that the sexual assault was a truly independent venture and was not committed in the course of a task assigned to Ronquillo-Nino. However, the Court found that Action Cleaning produced an affidavit stating that it provided janitorial services to Safeway, and that it was undisputed that Ronquillo-Nino was employed as a janitor at the Carson City Safeway store. The Court further found that Ronquillo-Nino was not acting on behalf of Action Cleaning when he assaulted Doe, or out of any sense of duty owed to Action Cleaning.
Moreover, the Court found that the sexual assault was not committed in the course of the tasks assigned to Ronquillo-Nino as a janitor. The Court concluded that Ronquillo-Nino’s sexual assault of Doe was an independent venture outside the course and scope of his employment. Therefore, the Court concluded that Doe’s argument failed and Action Cleaning met the first two requirements under NRS 41.745.
NRS 41.745 also requires an element of foreseeability, making employers liable only when an employee’s intentional conduct is reasonably foreseeable under the circumstances. According to NRS 41.745(1), an employee’s conduct “is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.” The Court noted that whether an intentional act is reasonably foreseeable depends on whether one has “‘reasonable cause to anticipate such act and the probability of injury resulting therefrom.'” Citing Rockwell v. Sun Harbor, Supra at 1228-1229 (quoting Thomas v. Bokelman, 86 Nev. 10, 13 (1970), and discussing foreseeability for the intentional acts of a third party in the context of premises liability). The Court turned to the California Court of Appeal and its explanation of “foreseeability” in the context of respondeat superior, which follows:
One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, “foreseeability” in this context must be distinguished from “foreseeability” as a test for negligence. In the latter sense “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.
Under the modern rationale for respondeat superior, the test for determining whether an employer is vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers’ compensation cases for determining whether an injury arose out of or in the course of employment.
Rodgers v. Kemper Construction Co., 50 Cal. App. 3d 608, 124 Cal.Rptr. 143, 148-49 (Ct. App. 1975) (citations omitted). This court quoted a portion of the above language with approval in State, Department Human Resources v. Jimenez, 113 Nev. 356, 365, (1997).
The Court found no genuine issue of material fact as to the foreseeability of Ronquillo-Nino’s conduct; Ronquillo-Nino had no prior criminal history in the United States or Mexico, Action Cleaning required applicants to show proof of identification, checked employment references, and checked for proper Immigration and Naturalization forms for every employee. Action Cleaning’s district manager further stated that he had not received complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past ten years. Therefore, the court found that under the circumstances of this case, it was not reasonably foreseeable that Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault resulted from Ronquillo-Nino’s independent acts and was not within the course and scope of his employment. Consequently, under NRS 41.745, Action Cleaning is not liable for the intentional conduct of its employee, Ronquillo-Nino, in this case.
The intervening and superseding criminal acts of an employee
The Court held that a negligence action will not stand when there is an intervening cause that in and of itself is “the natural and logical cause of the harm” Thomas v. Bokelman, 86 Nev. 10, 13 (1970) and that an intervening act is a superseding cause only if it is unforeseeable. Id.; see also Vallery v. State, 118 Nev. 357, 375, 46 P.3d 66, 78 (2002) (relying on Thomas in addressing criminal causation).
In Wood, the district court cited Kane v. Hartford Accident and Indemnity Co., for the proposition that a third party’s criminal act is a superseding cause unless it involves a foreseeable hazard to a member of a foreseeable class of victims. In that case, a nurse filed suit after a janitor at the hospital where she worked raped her. The nurse sued the insurance company of the subcontracted janitorial firm that bonded the employees who worked at the hospital. Her suit was based on the insurance company’s failure to properly investigate the janitorial employee who, in that case, had a criminal record involving various property crimes. The California Court of Appeals held that the janitor’s intervening criminal actions were unforeseeable because he had no history of violent crimes. Doe attempted to distinguish Kane on the ground that the case involved a negligence claim based on a failure to investigate the employee’s background, whereas her claims involve a broader set of actions including negligent hiring, failure to train, and failure to supervise. We conclude that this argument is unpersuasive.
However, the Court held that the issue is not what claims were alleged but instead whether the specific crime of sexual assault by one of its employees was reasonably foreseeable to the employer under the circumstances. The Court reasoned that since it already concluded that Ronquillo-Nino’s criminal actions were not reasonably foreseeable under the circumstances, Ronquiilo-Nino’s actions were an intervening superseding act that relieved Action Cleaning of liability in this case. Accordingly, the Court found that no genuine issues of material fact were present, and the district court properly granted summary judgment in favor of Action Cleaning.
The Current State of the Law
As a starting point, one must look to NRS 41.745 in order to determine employer liability for the intentional torts and/or crimes of its employees under a theory of respondeat superior, which provides that: An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee: (a) Was a truly independent venture of the employee; (b) Was not committed in the course of the very task assigned to the employee; and (c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment.
Truly an Independent Venture
In determining this prong, the case of J. C. Penney Co. v. Gravelle, 62 Nev. 439, (1945) is instructive. There, the court held “that where an assault by an employee is purely personal, having no connection with the employer’s business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer.” The Court further expanded on this in Prell, declaring that if the employee’s tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable, citing Chapman v. City of Reno, 85 Nev. 365, (1969).
Therefore, the question here hinges on whether or not the employee is engaging in the tortious conduct to“further the interests”of his master. The issue is best defined by the American Law Institute Restatement on Agency, which states: “An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to services on account of which he is employed.”
Course and Scope of Employment
An actionable claim on a theory of respondeat superior requires proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor’s employment. Regarding the first prong, respondeat superior liability attaches only when the employee is under the control of the employer and when the act is within the scope of employment. The element of control requires that the employer have control and direction not only of the employment to which the contract relates but also of all of its details and the method of performing the work.
With respect to scope of the actor’s employment, a comparison of Prell and Wood, supra, is instructive. In Prell the battery took place literally as the employee was standing at his station engaged in the very act he was employed to conduct, that is, dealing cards. In Wood, on the other hand, Ronquillo-Nino committed the sexual assault against Doe in secret, in hidden places, not in the “course and scope” but rather after setting aside and pausing the duties he was employed to discharge.
This prong of NRS 41.745 demands that employers be held liable only when an employee’s intentional conduct is reasonably foreseeable under the circumstances. An intentional act is reasonably foreseeable when one has reasonable cause to anticipate such an act and the probability of injury resulting therefrom. Foreseeability as a test for respondeat superior means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.
Therefore, it appears that in determining foreseeability, the following factors are pertinent: 1) the frequency and nature of the employees contact with the Plaintiff, and 2) the nature of the employee’s job Thus, it is foreseeable that a bouncer/security guard may run afoul of respondeat superior whereas a janitor will not; hence the opposite results in Sun Harbor and Wood, supra.