Friday, March 30, 2007

Is an employer liable for the sexual assaults of its employees?

No, according to the First Department, in DaSilva v. Trinity Church, decided on March 29, 2007.

Citing the definitive N.X. v. Cabrini Medical Center, the court said that a sexual assault is categorically outside the scope of employment and so there can be no liability under a theory of respondeat superior.

A plaintiff might have a cause of action under a theory of negligent hiring, supervision or retention but, here, the court found that (1) at the time of the hiring, the employer was unaware of any facts which might trigger a duty to inquire further, and (2) during the employee's tenure the employer did not receive any complaints which might have put it on actual or constructive notice as to the employee's propensity to a sexual assault.