Ohio Supreme Court: Negligent Hiring and Supervision Claims Are Not Dependent on Underlying Civil or Criminal Judgment and Are Subject to Two Year Limitations Period.

This morning, the Ohio Supreme Court unanimously addressed the evidence necessary to prove a claim that the defendant employer negligently hired and supervised an employee who the plaintiff had never sued, had never been held civilly liable for the alleged wrongdoing and had never been found guilty of any crime. Evans v. Akron Gen. Med. Ctr., Slip Opinion No. 2020-Ohio-5535.   While refusing to address all of the necessary elements of a negligent supervision or hiring claim, the Court held that “a plaintiff need not show that an employee has been adjudicated civilly liable or has been found guilty of a crime by a court in order for the plaintiff to maintain a negligent hiring, retention, or supervision claim against an employer.”  In other words, “a plaintiff must establish that an employee committed a wrong recognized as a tort or crime in the state of Ohio, and not that the wrong has been proven to be tortious or criminal in a court proceeding.” Furthermore, the plaintiff also need not file the negligent hiring/supervision claim within the limitations period for the underlying wrongful action.   The two-year limitations period for negligent hiring and supervision does not shift based on the underlying wrongful act.

According to the Court’s opinion, the plaintiff brought suit against the defendant employer alleging that one of its physicians had sexually assaulted her after she had been administered a narcotic.  She had never sued the physician and the criminal investigation did not result in any charges being brought.    She did not file suit until the one-year intentional tort limitations had run against the physician.  The trial court granted the employer summary judgment based on the plaintiff’s failure to establish criminal or civil liability against the employee physician.   While the appellate court disagreed that a civil or criminal judgment on the underlying misconduct was necessary, it still held that the plaintiff must file the action within the limitations period for the underlying wrongful act.

The Court found that its prior precedent had focused on whether the underlying alleged misconduct was even unlawful and whether the employer owed an independent duty.  “A negligent hiring, retention, or supervision action is a direct claim against an employer, based on an employee’s conduct that the law regards as wrongful that would not have occurred but for the employer’s failure to properly hire, supervise, or retain the employee.”  Because there were disputed questions of fact as to whether the employee physician in this case had engaged in the alleged misconduct and the plaintiff was not required to first prove that the physician employee had been found either civilly or criminally liable, summary judgment was inappropriate on that basis. 

The Court also rejected the alternative appellate holding: that the plaintiff’s lawsuit was untimely because she filed suit within the two-years required for negligence, but not within the one-year limitations period for the underlying intentional tort of sexual assault.  “The employee must be shown to have committed an act that is legally wrongful, irrespective of whether he or she has been or can be held legally accountable. We see no reason to conclude that the statute of limitations for a negligent hiring, supervision, or retention claim is affected by the statute of limitations governing the underlying legally wrongful conduct of the employee.” 

Moreover, in the trial court, neither AGMC nor Evans disputed the term of the statute of limitations for a negligent hiring, supervision, or retention claim. The court of appeals relied on R.C. 2305.10 in determining that the applicable statute of limitations is two years. 2018-Ohio-3031 at ¶ 9. Because Evans’s claim is directly against AGMC for its negligent hiring, supervision, or retention, it makes little sense for us to establish a statute of limitations that shifts depending on the facts of the employee’s underlying tort or crime instead of deferring to R.C. 2305.10(A).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New Developments in Ohio Negligent Hiring Claims

On June 26, 2012, Governor Kasich signed Senate Bill 337, which, among other things, reduced collateral sanctions for convicted felons. What has not been well publicized is that it also contains a provision – to be codified at O.R.C. § 2953.25(G) -- granting employers immunity from civil claims for negligent hiring and retention in certain circumstances. One of the primary features of the legislation is that it permits eligible offenders (who have successfully completed incarceration and parole) to obtain a Certificate of Qualification for Employment. An employer which relies on this Certificate in hiring and retaining an eligible offender is immune from civil liability for negligent hiring claims involving that offender and may use it as evidence of its due care in hiring, retaining, licensing, leasing, or admitting that individual in any other negligence claims or administrative proceedings. Of course, the employer loses that immunity if it continues to employ the individual after gaining actual knowledge that the employee subsequently demonstrates “dangerousness” or is convicted or pleads guilty to a felony. The Department of Corrections has until the end of September to create a process for issuing Certificates (including creating the form of the Certificate) and must report back to the Governor and the General Assembly about what industries are hiring eligible offenders and their recidivism rates. The statute is scheduled to take effect in late September 2012, after the Department creates the necessary process and form of certificate and issues governing rules under R.C. 119 to implement and operate the legislation.

The legislation provides in relevant part as follows:

Sec. 2953.25.

. . .

(G)(1) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued to an individual under this section may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate of qualification for employment was issued if the person knew of the certificate at the time of the alleged negligence or other fault.

(2) In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued to an individual under this section shall provide immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence.

(3) If an employer hires an individual who has been issued a certificate of qualification for employment under this section, if the individual, after being hired, subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony, and if the employer retains the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea, the employer may be held liable in a civil action that is based on or relates to the retention of the individual as an employee only if it is proved by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of or pleaded guilty to the felony and was willful in retaining the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea of which the person has actual knowledge.

(H) A certificate of qualification for employment issued under this section shall be presumptively revoked if the individual to whom the certificate of qualification for employment was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of qualification for employment.

(J) Not later than ninety days after the effective date of this section, the division of parole and community services shall adopt rules in accordance with Chapter 119 of the Revised Code for the implementation and administration of this section and shall prescribe the form for the petition to be used under division (B)(1) or (2) of this section. The form for the petition shall include places for all of the information specified in division (F) of this section. Upon the adoption of the rules, the provisions of divisions (A) to (I) of this section become operative.

(K) The department of rehabilitation and correction shall conduct a study to determine the manner for transferring the mechanism for the issuance of a certificate of qualification for employment created by this section to an electronic database established and maintained by the department. The database to which the mechanism is to be transferred shall include granted certificates and revoked certificates and shall be designed to track the number of certificates granted and revoked, the industries, occupations, and professions with respect to which the certificates have been most applicable, the types of employers that have accepted the certificates, and the recidivism rates of individuals who have been issued the certificates.

Not later than the date that is one year after the effective date of this section, the department of rehabilitation and correction shall submit to the general assembly and the governor a report that contains the results of the study and recommendations for transferring the mechanism for the issuance of certificate of qualification for employment created by this section to an electronic database established and maintained by the department.

(L) The department of rehabilitation and correction, in conjunction with the Ohio judicial conference, shall conduct a study to determine whether the application process for certificates of qualification for employment created by this section is feasible based upon the caseload capacity of the department and the courts of common pleas. Not later than the date that is one year after the effective date of this section, the department shall submit to the general assembly a report that contains the results of the study and any recommendations for improvement of the application process.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Workers Compensation Does Not Bar Negligent Hiring Claim When Co-Worker Rapes Employee, Which Was Not Foreseeable.

Yesterday, the Butler County Court of Appeals affirmed the dismissal of a negligent hiring claim against a residential facility for the mentally disabled. Prewitt v. Alexson Servs., Inc., 2008-Ohio-4306 (8/25/08). In that case, an employee raped a co-worker, who then argued that the employer was negligent in its hiring and supervision of the rapist. Although the trial court dismissed the lawsuit on the grounds that her claim was covered and barred by the workers compensation statutes and his crime was not foreseeable based on the rapist’s prior criminal history, the Court of Appeals affirmed only on the grounds that the rape was not reasonably foreseeable under the circumstances.

The plaintiff employee argued that the employer was negligent in hiring and supervising the rapist and that her rape was reasonably foreseeable because the rapist had been convicted of disorderly conduct (for exposing himself in a public park) before he had been hired. He had also been investigated (and cleared) by the county MR/DD department and the local police after he was hired for assaulting a client by striking her with pillows. He had also been investigated twice by the local police for sexually assaulting patients. During these investigations, the rapist informed the police (who, in turn, informed the employer) that he suffered from bi-polar, was borderline schizophrenic and was not taking his medication. Moreover, he took a two-month FMLA leave of absence for his mental health issues and was cleared to return to work without any restrictions by his physician. Finally, another co-worker had privately claimed to the plaintiff that she had been raped twice by the rapist at work, but had never reported it because she did not want her family to know.

While the employer conducted pre-employment background and criminal checks of applicants, it relied on the employee’s honor to self- report any criminal convictions after the employee was hired. Nonetheless, the court found that this fact to be irrelevant in this case because the rapist had not been convicted of any similar crimes after being hired. Further, the pre-employment criminal check did not reveal the circumstances of the rapist’s disorderly conduct (which, in any event, was not – in the court’s opinion -- necessarily indicative of his predisposition to rape a co-worker in that it did not involve a physical assault). Because the employee had been returned to work by his physician after his FMLA leave without any restrictions, the court did not find that the rapist’s mental health issues were indicative of his future proclivity to rape a co-worker. In totality, the court found that there was no evidence that the employer possessed any knowledge which would indicate that it was reasonably foreseeable that the rapist would sexually assault a co-worker during working hours.

Nonetheless, the court reversed the trial court’s finding that the negligent supervision/hiring claims were barred by the workers compensation laws because the rape did not occur within the scope of the rapist’s duties, and therefore, was not an “accident.” Ohio Revised Code § 4123.74 provides, in pertinent part, "Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, * * * received * * * by any employee in the course of or arising out of his employment * * *." The employer argued that a prior Supreme Court decision (which held that the workers compensation laws did not bar sexual harassment claims) applied to bar this negligent hiring claim because the employee’s injury in this case was physical – not emotional as in sexual harassment cases.

However, the Court of Appeals disagreed: “Regardless of the nature of appellant's injuries suffered as a result of the rape, the controlling inquiry is whether the injury was "accidental" or occurred "in the course of or arising out of the employment." Under Ohio Revised Code § 4123.74, “an employer is not immune from liability for injuries not taking place in the course of or arising out of employment. "For an accident to 'arise out of' the employment as required under Workers' Compensation Act, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs; the accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence . . . The controlling test of whether an injury arises out of the employment is whether the injury is a natural and probable consequence of the nature of the employment. . . . . A similar analysis in this case demonstrates that the rape did not occur "in the course of" or "arise out of" appellant's employment as a rape is not a "natural and probable consequence" of the nature of the employment. Moreover, the rape does not constitute an ‘accident’ included in the definition of ‘injury.’"

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-4306.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.