Employers occasionally become dejected over the prospects of defending against tort and other civil claims in state courts. However, a recent case out of Houston reaffirms that employers can and do win these kinds of cases when they have implemented the appropriate policies.

In Ogunbanjo v. Don McGill of West Houston, Ltd., the Texas Court of Appeals for the First District considered a lower court’s judgment granting summary judgment in the employer’s favor in a case over an employee’s assault on a customer. The plaintiff-customer had taken a car to be serviced at the defendant’s dealership. After dropping off her car, she was told to wait in the waiting room for the dealership’s shuttle bus to take her home. One of the car salesmen then offered to give her a ride home. After the two left the dealership in the salesman’s personal vehicle, the salesman allegedly tried several times to remove the customer’s clothing and touched her in offensive ways. She complained to the dealership the next day and the dealership immediately fired the salesman. The customer sued, contending that the dealership had negligently hired the salesman and that the company was responsible for the assault under the theory of respondeat superior.

Regarding the plaintiff’s general negligent hiring claim, the court focused on the notion that in order to establish such a claim, a plaintiff must suffer damage from the foreseeable misconduct of an employee who had been hired because of the employer’s negligent hiring practices. In this case, the plaintiff presented no evidence that the employee had ever previously committed an assault upon a customer at any time. Therefore, the plaintiff did not raise an issue as to whether the employer should have ever foreseen such misconduct.

Concerning the plaintiff’s allegation that the company was responsible for the assault under the respondeat superior theory, the appellate court also upheld summary judgment for the employer. Importantly, under Texas law, the intentional torts of an employee generally fall outside of the course and scope of an employee’s employment. The plaintiff argued that the offer to give her a ride home was within the course and scope of his employment. However, even if that were true, committing an assault on a customer was not in furtherance of the business of the company or for the accomplishment of the object for which he was employed and, therefore, his conduct did not fall within the course and scope of the employee’s employment as a matter of law.

The result in this case is a good reminder that employers should not immediately despair when they are sued based upon the tortious conduct of their employees. The lack of proof of any prior similar misconduct by the employee cemented victory for the employer in this case. The court’s inquiry into the employee’s past also supports the practice of conducting targeted, appropriate background and reference checks for all employees who may be “customer-facing.” Second, this case suggests that an employer can avoid ratifying the tortious conduct of its employees through decisive and prompt action as soon as a complaint is made.

Finally, this case reemphasizes the steps employers can take to avoid liability. Under Texas law, as long as an employer has conducted an appropriate background check and has taken prompt action in the face of alleged employee misconduct, the employer will not generally be held liable for employees’ intentional torts, as these acts are generally outside of the course and scope of employment.


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Background Checks

Background checks are a trending topic for employers because of the tidal wave of class action lawsuits alleging technical violations of the federal Fair Credit Reporting Act as well as the proliferation of state and local background check laws (including those arising from the Ban the Box movement).

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