{3:30 minutes to read} In Part 1 of this article, we looked at the initial ruling dismissing a complaint brought by the estate of a woman murdered by her supervisor. The plaintiff chose to appeal the decision. Part 2 discusses the results of that appeal.

The Appeal

The court of appeals reiterated the general rule in Illinois tort law, which is that one person has no duty to prevent the criminal acts of another. The court also stated that employers can be liable for hiring and retaining an employee if they knew, or should have known, said employee was unfit for the job by creating a danger of harm to third persons. To recover for a breach of that duty, a plaintiff must prove that:

• The defendant‐employer knew or should have known that an employee had an unfitness for his position so as to create a danger of harm to third persons;
• Such unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and
• Unfitness proximately caused the plaintiff’s injury. The court stated the proximate causation element is satisfied when the employee’s unfitness “rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.”

Although the murder occurred outside the work premises, the crime was committed under the aegis of supervisory authority. Cooper threatened to fire her or reduce her hours if she did not go with him to his sister’s wedding. The court stated Cooper could do that only because the defendants made him her supervisor.

The court held that to succeed on a claim for negligent hiring, supervision, or retention, the plaintiff must demonstrate that the employee’s “unfitness … rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Cooper’s “particular unfitness” was his harassing, controlling, and aggressive behavior toward his female subordinates.

Defendants’ Argument

Defendants alleged that Bromfield’s death was not foreseeable from that conduct, as the attack was a radical break from even his most offensive prior behavior, and even if a reasonable employer could have foreseen violence, they argue, they could not have foreseen murder. In addition, a reasonable employer could not have predicted violence at all since Cooper had not made explicit threats and had not yet hit anyone.

Court Conclusion

The court concluded that both arguments present factual issues that cannot be decided on a motion to dismiss.

It should be emphasized that the court’s decision does not mean that defendants are liable for Bromfield’s death. But the court believed that there were factual issues that warranted continuation of the lawsuit.

While the outcome of the lawsuit remains in question, the case is a sobering warning to employers that failing to act against abusive and violent employees could have significant consequences.

Alan Krystal

Alan H. Krystal, P.C.
631 780 6555
Alan@AlanKrystalLaw.com