Mad Apostate,
Thank you kindly for correcting me. I hate putting words in people’s mouths. Sorry if I got you the wrong way.
So you are saying, Circuit and District Overseers, Elders and Ministerial Servants are WTS "agents" when they (eg. elders etc.) are performing their official duties, or the affected party (such as say a publisher) reasonably believed that the “agent” is officially acting in his official capacity of elder.
Interesting.
I noticed that in Marquay v. Eno. there is a conversation by the court relating to "Duties Based on Relationship to Abusing Employees".
This has to do with the “negligence of hiring or retention”. Employers sometimes have a “common law duty” in some cases where an employee abuses someone.
The court in Marquay v. Eno indicated that “A person conducting an activity through servants or agents is subject to liability for harm resulting from his conduct if he is negligent or reckless .... in the employment of improper persons.”
From what I am reading in Marquay v. Eno, , Mad Apostate, a Principal must exercise due care in selection of a vicious (ie. nasty) person if the employer brings the person into contact with others, while in the performance of a duty. If the employee hurts someone, the employer could be subject to liability for harm caused by the “agent” (employee). The court also stated “A reasonable man is required to anticipate and guard against the intentional, or even criminal misconduct of others .... where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct”.
In allowing the “negligence of hiring or retention” the court has told plaintiffs, they must establish some “casual connection” between the plaintiff’s injury and the fact of employment. If this rule was abandoned the court indicated that an employer would become an insurer for all victims of its employee.
Interestingly, the court went into what is the definition of “casual connection”. The court said that "employers have been held liable for criminal conduct of off-duty employees or former employees where such conduct was consistent with a propensity of which the employer knew of should have known, and the association between the plaintiff and the employee was occasioned by the employee’s job". The court used a couple of examples to show what it meant. One example dealt with a landlord being liable for an apartment manager who while on-duty found out a woman’s husband was not present and then came back in an off-duty capacity and raped her. The second example dealt with an alarm company being liable for an employee who installed a burglar alarm and then as a former employee he went back and robbed the house.
In Marquay v. Eno., the court said the school board and some school officials had a “common law duty” to not hire employees that would abuse children (ie. Liability based on negligent hiring or retention). "A school may be liable for abuse of a student by a school employee outside of school hours where there is a causal connection between the particular injury and the fact of employment", the court said. The court also went further and said that plainiffs, using this common law duty, could use the New Hampshire’s child abuse reporting statute as the standard of care to show negligence per se.
Hypothetical Question to you Mad Apostate:
Now lets say we have an "agent", say a Circuit Overseer, who was known to the WTS as an abuser or likely abuser at the time of retainment and was still hired/assigned/appointed by the WTS. Say the Circuit Overseer (ie. agent/employee etc) abused children who were either his own children or other children during a time that he was a Circuit Overseer but he was “off-duty”. Of course, these children, his own or others, had “occasion” to become associated with the Circuit Overseer at the Kingdom Hall or other functions.
Now given the hypothetical that the WTS knew about the CO when they hired him, does the WTS, through “negligent hiring or retention” have a “common law duty” to protect all children, that have had “occasioned” (ie. causal contact as defined by the court) with the Circuit Overseer at the Kingdom Hall (place of employment)?
Of course I’m not talking about what standard of the “common law duty” is needed here but I am just asking does the WTS have a "duty" in this hypothetical case?
Below I provide Section B. of Maquay v. Eno in full for you to read if you need it.
I look forward to your answer and again thanks for your time in helping me understand this.
Hawk
Maquay v. Eno
( http://www.edlaw.fplc.edu/Text/Library/case-marquay.html
B. Duties Based on Relationship of Abusing EmployeesUp to this point, we have discussed only personal liability of school employees based on a special relationship to the student. We turn now to the question of liability based on a relationship to the allegedly abusing school employees.
We have previously recognized a cause of action against an employer for negligently hiring or retaining an employee that the employer knew or should have known was unfit for the job so as to create a danger of harm to third persons. See Cutter v. Town of Farmington, 126 N.H. 836, 840-41, 498 A.2d 316, 320 (1985); LaBonte v. National Gypsum Co., 113 N.H. 678, 681, 313 A.2d 403, 405 (1973). This cause of action is distinct from one based upon the doctrine of respondeat superior and is a theory of direct, not vicarious, liability. Cutter, 126 N.H. at 840, 498 A.2d at 320. In Cutter, we cited Restatement (Second) of Agency §§ 213 (1958), which provides that "[a] person conducting an activity through servants or agents is subject to liability for harm resulting from his conduct if he is negligent or reckless ... in the employment of improper persons."
[An agent] may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him into contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity.
Restatement (Second) of Agency §§ 213 comment d; see also Restatement (Second) of Torts §§ 302B comment e (1965) ("a reasonable man is required to anticipate and guard against the intentional, or even criminal, misconduct of others ... where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct").
A cause of action for negligent hiring or retention, however, does not lie whenever an unfit employee commits a criminal or tortious act consistent with a known propensity. As several courts have properly recognized, the plaintiff must establish "some [causal] connection between the plaintiff's injury and the fact of employment." Dieter v. Baker Service Tools, 739 S.W.2d 405, 408 (Tex.Ct.App.1987); see also Bates v. Doria, 150 Ill.App.3d 1025, 104 Ill.Dec. 191, 195, 502 N.E.2d 454, 458 (1986). This causal requirement is necessary because "[w]ere such a connection not required, an employer would essentially be an insurer of the safety of every person who happens to come into contact with his employee simply because of his status as employee." Bates, 104 Ill.Dec. at 196, 502 N.E.2d at 459.
The requirement of causal connection to employment does not mean, however, that the employee's criminal conduct must have been performed within the scope of employment, during working hours, or even while the perpetrator was an employee. See Henley v. Prince George's County, 60 Md.App. 24, 479 A.2d 1375, 1383 (Md.Ct.Spec.App.1984); Bates, 104 Ill.Dec. at 195, 502 N.E.2d at 458; Dieter, 739 S.W.2d at 408. Liability exists not because of when the injury occurs, but because "the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct." Restatement (Second) of Torts §§ 302B comment e (emphasis added). Thus, employers have been held liable for criminal conduct by off-duty employees or former employees where such conduct was consistent with a propensity of which the employer knew or should have known, and the association between the plaintiff and the employee was occasioned by the employee's job. See, e.g., Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.1983) (apartment owner liable for rape of tenant at knifepoint by resident manager in middle of the night after resident manager learned during repair visit that plaintiff's husband was away); McGuire v. Arizona Protection Agcy., 125 Ariz. 380, 609 P.2d 1080 (Ariz.Ct.App.1980) (burglar alarm installation company liable where former employee who had installed alarm in plaintiff's home later broke in and stole items after disconnecting alarm); see also Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980); Welsh Mfg., Div. of Textron v. Pinkerton's, 474 A.2d 436 (R.I.1984); Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 378 S.E.2d 857 (1989).
Applying these legal principles to the present case, we find that a school district or school administrative unit (school) has a duty not to hire or retain employees that it knows or should know have a propensity for sexually abusing students. Where the plaintiff can establish that the school knew or reasonably should have known of such a propensity, the school will generally be liable for the foreseeable sexual abuse of students by that employee. Liability based on negligent hiring or retention is not limited to abuse that occurs during the school day. A school may be liable for abuse of a student by a school employee outside of school hours where there is a causal connection between the particular injury and the fact of employment. Also, a school can only be liable for injuries suffered after it knew or should have known of the employee's propensity. In any event, liability will only lie if the employee's conduct was tortious.
Some school officials may also be subject to personal liability under negligent hiring or retention theories. Those officials who have hiring and firing authority with respect to subordinates must exercise that authority reasonably, and, once such an official becomes aware or should have become aware that a subordinate was sexually abusing a student, retention could be unreasonable.
Finally, we consider the negligence per se question--i.e., whether the reporting requirement of RSA 169-C:29 should be engrafted onto the standard of care in an action based on negligent hiring or retention. While we held in section I that the reporting statute is not applicable in an action based on negligent supervision, we hold that it is applicable in a negligent hiring or retention action. Accordingly, under these circumstances, failure to report abuse in accordance with the statute could give rise to liability, provided the plaintiff can show that reporting would have prevented the subsequent abuse.
