No Employer Liability for Off-Site Sexual Assault by Co-Worker

Monday, October 1, 2018

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Court of Appeal:

No Employer Liability for Off-Site Sexual Assault by Co-Worker

Opinion Upholds Determination That Walmart Is Not Responsible for After-Hours Conduct By Employee Who Had Been Twice Convicted of Robbery; Says Foreseeability Is Missing

By a MetNews Staff Writer

The First District Court of Appeal has held that an employer is not liable to an employee—on either a negligent hiring theory or based on a failure to warn—for a sexual assault by a co-worker, who had two robbery convictions, where the attack took place after-hours and outside the worksite.

Justice Richard M. Aronson wrote the opinion, filed Friday, affirming a summary judgment granted by Orange Superior Court Judge Deborah C. Servino in favor of the employer, Walmart. The opinion was not certified for publication.

Although it was undisputed that Walmart did not know of the 1984 and 1992 convictions of Olin Martin, who stocked shelves at its store in the City of Orange, the opinion makes clear that even if it did have such knowledge, liability would not attach.

Martin sexually assaulted a woman identified in the opinion as Jane Doe over a period of more than hour in the company parking lot, starting shortly before midnight on July 21, 2013. (Aronson specified that the assault was not a “rape” but entailed forcible oral copulation and penetration with a foreign object.)

The assailant repeatedly expressed umbrage during the course of his assault over his advances having been spurned earlier during a 6 p.m. “lunch” break he and the victim took in a park near the store.

Martin was later convicted and sentenced to a term of 35-years-to-life. The conviction was affirmed on appeal

Agreeing with Servino’s torpedoing of Doe’s action, Aronson said:

“Simply put, Walmart cannot control what employees do when they leave work, or during their time away from the job.”

Negligent Hiring Theory

With respect to the negligent hiring theory, the jurist said:

“Assuming Walmart had discovered Martin’s criminal history by performing a more comprehensive background check, Doe does not tell us what Walmart would have been obliged to do with that information. She does not allege it would have been per se negligent for Walmart to hire Martin in the first place, nor does she describe how Walmart should have somehow ‘supervised’ Martin differently from its other employees, both while on the job and off, because of his prior criminal history.”

Even if Walmart had been negligent in hiring Martin, Aronson continued, Doe did not make a showing that this was a proximate cause of the attack on her. He pointed out:

“Neither Doe nor Martin were at their workplace, or even on duty, at the time of the sexual assault, nor during their lunchtime meeting at the nearby park. Moreover, the motivation for Martin’s assault was Doe’s refusal to respond favorably to his amorous advances during their lunch in the park, and smoking marijuana at lunch that day was unquestionably outside of Doe and Martin’s employment duties and responsibilities.”

The first robbery, Aronson noted, occurred 31 years earlier and the more recent one was 19 years in the past. He said these offenses “do not foreseeably indicate Martin would someday sexually assault a fellow employee in a Walmart parking lot after both employees were clocked out and off-duty,” remarking:

“The foreseeability of that specific type of harm is simply too speculative and the causal nexus too attenuated…[I]t is doubtful whether it was reasonably foreseeable Martin would have robbed a fellow employee, let alone sexually assaulted one.”

Failure to Warn

Doe invoked the California Supreme Court’s 1976 decision in Tarasoff v. Regents of University of California where it was held that therapists who heard a patient’s threats to kill a woman who had rejected his advances were under a duty to warn her. The patient stabbed her to death on Oct. 27, 1969.

Aronson said that the duty found in that case “arose from the special relation between a patient and his doctor or psychotherapist, generally recognized as supporting an affirmative duty for the benefit not only of the patient, but of other persons as well.” In the present case, he set forth, “Doe has not identified any authority imposing a general duty upon employers to warn their employees about a coworker’s criminal ‘propensities’ or prior criminal convictions.”

In a footnote, he declared:

“Nor has Doe ever explained how such a warning would be phrased or provided given California’s strict personal privacy interests and the presumptive statutory confidentiality of an employee’s personnel records….Indeed, if Doe were correct, Walmart would have been faced with the dilemma of having to choose between being sued by Martin for disclosing the contents of his confidential criminal and personnel records, or being sued by Doe or another employee for failing to warn them about Martin’s prior criminal history.”

March Decision

Doe also drew attention to the California Supreme Court’s decision on March 22 in Regents of the University of California v. Superior Court. In that case, a UCLA student who had been suffering from hallucinations and was being treated by the university stabbed another student, nonfatally, and she sued based on a failure to warn.

Los Angeles Superior Court Judge Gerald Rosenberg denied UCLA’s motion for summary judgment; the Court of Appeal for this district granted a writ of mandate instructing the Superior Court to grant the motion; the Supreme Court reversed.

That case, Aronson said, is inapposite. He explained:

“The holding in Regents is actually quite narrow: ‘Considering the unique features of the collegiate environment, we hold that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities.”…Further limiting the scope of its holding, the court observed ‘[a]lthough comparisons can be made, the college environment is unlike any other.”…Thus, Regents is not an employer-employee case, and its analysis cannot be applied here.”

The case is Doe v. Walmart Stores, Inc., G054660.

Torrance attorney Kwasi A. Asiedu of Schwartz & Asiedu represented Doe. Andrew N. Kohn, Jennifer N. Lutz, and Christina G. Bernstein of the San Diego firm of Pettit Kohn Ingrassia Lutz & Dolin acted for Walmart.