In many cases, an employer may be held liable for the acts of its employees when its employees are working within the scope of their employment. The legal term for this concept is respondeat superior (Latin for “let the master answer”). Generally, the liability of the employer does not extend to the torts of its employees who act outside the scope of their employment.
Michigan courts have recognized that criminal conduct of an employee is, in general, unforeseeable and outside the scope of employment of a legitimate business. Therefore, for the most part, an employer will not be liable for the criminal acts of its employees. However, there is an important exception to this rule for employees whose criminal act is reasonably foreseeable. The Michigan Court of Appeals in Smith v. Bronson Lifestyle Improvement and Research Center Co. further explained what it means for an employee’s criminal conduct to be reasonably foreseeable.
In Smith, the court held that an athletic club running a day camp for children was not liable for a sexual assault against a minor committed by one of the camp’s teenage counselors. The court held in this case that, since the athletic club had performed the proper criminal background checks on the counselor and nothing in his behavior showed a propensity for sexual assault, the club was not liable under the theory of respondeat superior or for negligent hiring and retention.
While the athletic club was not held liable in this case, it does still serve as a reminder to exercise caution in hiring and retaining employees. In the hypothetical case in which the camp counselor had exhibited similar behavior in the past which the athletic club was or should have been aware of, the employer likely would have been found liable under the doctrine of respondeat superior. For Michigan employers, this means that criminal background checks should be performed, especially when hiring employees that will be in regular contact with children. Also, this case stresses the importance of taking note of employee behavior.
This blog was written by Tyler Kemper, law clerk.
