In our Summer 2006 issue of Insight, we addressed a controversial Michigan Court of Appeals decision, Brown v. Samuel Whittar Steel.  In that case, a plant foreman had raped a security guard working at the plant who was employed by an outside firm.  By her account, she had earlier complained to plant management that the foreman had made sexually crude -- but not physically threatening -- comments to her.  Although negligent retention claims have historically required evidence that the employer knew its employee had engaged in prior physically violent acts (and typically had a prior criminal conviction), the Court of Appeals held that the security guard’s claim against the foreman’s employer could proceed to trial based simply on her report of his crude comments. 

In July 2007, the Michigan Supreme Court reversed by a 4-3 vote.  The majority emphasized that foreseeability has always been the linchpin of negligence claims, and that it is the employer’s knowledge of the employee’s past violent acts that may render future violent acts foreseeable.  Because employers are entitled to assume their employees will obey the criminal laws, crude language alone does not render it foreseeable that the employee will progress from mere words to criminal sexual assault.  Indeed, in this case the security guard rape victim, despite the foreman’s earlier crude sexual comments, admitted that she did not fear he would physically assault her.  She simply thought he was “weird.”  The Court’s majority refused to “transform the test of foreseeability into an ‘avoidability’ test that would merely judge in hindsight whether the harm could have been avoided.” 

In essence, the Michigan Supreme Court returned negligent retention claims to their historical moorings, i.e., a standard of foreseeability based on the employer’s knowledge of prior assaultive or other violent acts, rather than a standard of clairvoyance.  While the Court did not say that words alone can never be enough to invoke the foreseeability standard, it made clear that any such words must “convey an unmistakable, particularized threat of rape” -- much more than the crude comments of sexual lust involved in this case.  If the standard were weakened, the majority reasoned, a prudent employer would feel called upon to terminate any employee who gave verbal or behavioral “clues” that might allow a jury, exercising 20-20 hindsight, to hold it responsible for a subsequent crime.  What employee could possibly survive such scrutiny?

Julia Turner Baumhart