A new decision of the Oregon Court of Appeals on employer responsibility for employee use of force provides guidance for employers.
The case, Bray v. American Property Management Corp., arose out of the stabbing death of a bakery owner. The stabbing followed a period of escalating friction between Mr. Bray and the parking attendant at the next door garage. Friction developed into heated arguments and, after a scuffle that the victim may have started, the parking attendant used his knife, with tragic results.
The widow sued and recovered more than $400,000 from the property manager. The jury concluded the parking attendant's acts were within the "course and scope" of employment (meaning the employer must bear responsibility for the harmful acts of employees). The "course and scope" test comes in three parts:
* Did the act occur within the time and space limits of the job? (Here it clearly did.)
* Was the employee motivated to serve the employer at least in part? (Here the employee had been told not to let Mr. Bray park, causing a confrontation that led to the stabbing death.)
* Was this the kind of act the employee was hired to perform? (Here it was not.)
Unfortunately, there is not always a clear answer to each prong of the course and scope test. The Court of Appeals noted that while the attendant was not instructed to use force, no one told him not to. "Reasonable jurors could find that [the employer's] directive to [the employee]not to permit Bray to park in the garage was a 'necessary precursor to' the stabbing and that stabbing was 'a direct outgrowth and [was] engendered by conduct that was within the scope of [the employee's] employment.'" Thus, even though the excessive force was not a reasonably foreseeable consequence of the employer's instructions "don't let him park here," this instruction directly caused the employee to use force. The court held that this direct causation was enough to hold the employer liable for its employee's actions.
With the benefit of 20-20 hindsight, you can see that a few more rules of conduct might have saved the employer. The outcome of any particular case depends on what the employer says or tolerates.
If you have employees working in positions that might someday place them in a heated argument or fight, spend some time working with them on how to respond. It's surprising how many such jobs there are: security guards, clerks in all night stores, group home leaders, even parking garage attendants. Train them how to avoid confrontations, and give them guidelines about the permissible and impermissible use of force.
Good Advice for Good Employers Everywhere SM
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