The Restroom Peeper -- Rehired to Peep Again

You can't make this stuff up!  

David Chavez, a cashier for QuikStop in Caruthers, California, was arrested, and convicted, of recording persons using the store restroom.  In January a court placed Chavez on probation for his crime.  Believe it or not, QuikStop rehired Chavez.  Within days a customer discovered Chavez recording again.  The customer grabbed the telephone and gave it to police.  Apparently, Chavez has admitted to the recent act.  

Clearly, Chavez has issues.  So does the store owner.  I'm thinking lawsuit!  

Employers can be held liable for the acts of an employee under one of two theories.  Under the doctrine of respondent superior, an employer is liable for the acts of an employee taken in the course and scope of employment.  I imagine, however, that recording customers in the restroom is not within the course and scope of an employee's job.  In my opinion, the store could wage a good defense on a claim of respondent superior liability.  

An employer can also be held liable for the acts of its employees under the theory that the employer itself acted negligently.  In this case, the most recent victim of the secret recording can claim the store acted negligently by rehiring a man who was criminally convicted of peeping at the store.  (The first customer may not have as good of a claim, however, because the store could argue there was no way it could have known that Chavez would peep on customers in the restroom.)  Employer negligence appears to be a very viable claim and I would expect that the customer would consider legal action.  

What is such a claim worth?  How would you feel if it was you or a family member who was violated?  And given the fact that the employer rehired the employee after the criminal conviction, there is a good claim for punitive damages.  

We live in a crazy world!  Try to keep your workplace sane by making smart hiring decisions.  And of course, always conduct some form of background check to help determine if someone has engaged in behavior that could jeopardize your customers, clients or patients.  

Another Claim Against Kaweah Delta -- When Is The Employer Liable for Employee Acts?

I recently read the sad story in a newspaper of a patient at Kaweah Delta hospital who was raped by a hospital employee.  The employee pled guilty to this rape and to the rape of another patient.  He will likely be sentenced to 25 years for the crimes. 

The patient is now suing the rapist and the hospital.  Of course, the focus of the litigation will be on the employer with the deep pocket.  This raises the question -- when is an employer liable for the acts of its employees?  Two different theories of liability are used to impose liability on an employer because of the bad acts of employees. 

Liability attaches if the employee is acting in the scope of employment when (s)he engages in the wrongful act.  This is called vicarious liability.  It literally means the employer stands in the shoes of its employee. 

It might be difficult for the patient to win on this theory.  Raping or engaging in any criminal act is not within the scope of employment for a hospital employee.  There are several reported cases in California where employers are not liable for the criminal acts of their employees, even in the setting of a hopsital or policing, where abuse can more easily occur.  So I have my doubts that Kaweah Delta will be held vicariously liable for the acts of the rapist. 

An employer can also be liable for the acts of its employee when the employer's behavior contributed to the incident.  We typically refer to this as negligent hiring, supervision or retention.  Rather than vicarious liability, the employer is liable for its own actions in creating a dangerous situation where harm occurred. 

This is probably the theory on which the victim's case will rest.  The victim's lawyer claims that at least two other people were raped at the hospital during the time the perpetrator was employed.  The lawyer predicted he would find a "swath of women" who have been sexually assualted. 

But it won't be enough for the plaintiff to show that attacks occurred.  The plaintiff must show that the hospital was negligent in its hiring or supervision of the perpetrator.  There must be some action, or inaction, on the part of the hospital to impose liability. 

It will be fascinating to see how the evidence develops in the case and what will happen if the case goes to trial.