The Colorado Supreme Court ruled that a small business owner was not liable on the basis of negligent supervision for an employee's sexual molestation of a 12-year-old girl occurring on business premises on a day when the business was closed. While this case did not involve a church, the court's conclusions will be instructive to any employer. An owner of a dry cleaning business (Josh) hired a male employee (Steve), and later promoted him to the position of manager. As manager, Steve had keys to the premises and was responsible for operating the business, which included opening and closing the store. However, Steve did not have authority to bring third parties to the business during non-working hours.
On a Sunday morning when the store was closed, Steve told a neighbor that he was going into work to provide a carpet cleaner with access to the premises, and he asked if the neighbor's 12-year-old girl (the "victim") could accompany him. The neighbor agreed, and Steve took the victim to the store. While there, he took the victim to a back office where he locked the door and sexually assaulted her. Steve was later prosecuted and convicted for felony child molestation, and was sentenced to prison. The victim's parents sued Josh, the owner of the store, claiming that he was liable for Steve's behavior on the basis of negligent supervision.
A trial court found that Josh was negligent in his supervision of Steve and awarded damages. The court cited testimony from three former women employees who told Josh that Steve had sexually harassed and fondled them during business hours. The young women related several instances where, during business hours, Steve asked them to perform sexual acts as well as touched their breasts and buttocks. All three quit their positions and told Josh of the episodes. Additionally, one of the employee's mothers called Josh and warned him of civil liability.
The state supreme court reversed the trial court's ruling, and dismissed the negligent supervision claim. The court noted that "to establish liability, the plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm." The court conceded that an employer may be liable on the basis of negligent supervision for actions of an employee outside of the scope of employment, but it concluded that the employee's acts must be "so connected with the employment in time and place" that the employer "knows that harm may result from the employee's conduct and that the employer is given the opportunity to control such conduct." The court concluded that the victim failed to produce any evidence that Josh knew or should have known that Steve would bring a 12 year-old girl, with no connection to the dry cleaners, to the store when it was closed and then sexually assault her there. The court acknowledged that there was substantial evidence that Josh knew of Steve's proclivities to engage in lewd and sexual behavior with the female employees on the premises during business hours, but this knowledge did not suggest that he was a risk of molesting minors on store premises when the business was closed.
The court rejected the victim's claim that Josh's knowledge of Steve's lewd conduct with both employees and customers created a duty of care to all women and girls who came on the premises regardless of whether he could anticipate their presence. It noted, "The victim has undoubtedly suffered great harm from the assault in this case. However, we do not embrace a theory of negligent supervision that would be an open invitation to sue an employer for the intentional torts of an employee founded upon a generalized knowledge of that employee's prior conduct. We emphasize that an employer is not an insurer for violent acts committed by an employee against a third person."
. This case is instructive for a couple of reasons. First, it illustrates that employers (including churches) have a duty to supervise any employee or volunteer whom they know to be a threat of harm to others. Church leaders should recognize that allowing a person who has engaged in sexual misconduct in the past to have unrestricted and unsupervised access to church property and activities exposes the church to possible liability in the event the person commits a similar act. Second, the case demonstrates that an employer, including a church, may be liable on the basis of negligent supervision for the sexual assaults of its employees that occur outside of the normal scope of employment if they are "so connected with the employment in time and place" that the employer "knows that harm may result from the employee's conduct and that the employer is given the opportunity to control such conduct." As this case illustrates, this liability may extend to acts committed on church property "after hours" or on days when the church is closed. Keller v. Koca, 111 P.3d 445 (Colo. 2005).