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Legal Report March 2006


PREMISES LIABILITY. An Illinois appellate court has ruled that a tenant who was raped outside her apartment may sue her landlord for inadequate security. The court found sufficient evidence to allow the plaintiff to pursue the case based on the landlord’s promise of security lighting, the absence of that lighting, and the assailant’s comments that he decided to commit the rape because the apartment grounds were dark.

In early September 2001, Carla Bourgonje rented an apartment in a historic mansion in the Logan Square area of Chicago. Before renting the apartment, Bourgonje spoke with the landlord and owner, Luann Machev, about the building’s security. Bourgonje asked Machev whether the area was well lit at night. Machev assured Bourgonje that the grounds were equipped with several antique street lights, two flood lights, and a motion detector that, when tripped, would activate even more lights.

Two weeks after moving into the apartment, Bourgonje sent a letter to Machev complaining that none of the exterior lights worked and that the motion detectors seemed inoperative as well. The exterior gate could be opened by residents by entering a code into a touchpad. However, the intercom buzzer, which was designed for visitors but also allowed residents to alert those inside the mansion, worked only sporadically.

On October 2, 2001, Bourgonje returned from the opera at around 11:00 p.m. She parked approximately one block from the mansion. She walked to the mansion, and while she was getting mail from her mailbox she was grabbed by a man who put his hand over her mouth and demanded cash. During the ensuing struggle, Bourgonje hit the touchpad with her elbow, causing it to make noise. The attacker ordered Bourgonje to open the gate, which she did. He then dragged her across the unlit courtyard to an alcove and raped her.

Bourgonje sued Machev for negligent security, claiming that the lack of lighting or other security precautions led to the attack. Machev requested summary judgment—a hearing based on the facts of a case without a trial. The Circuit Court of Cook County granted the summary judgment, ruling that there was no strong evidence that lighting would have prevented the attack. The court also noted that Bourgonje was first accosted on the sidewalk outside of the mansion entrance.

Bourgonje appealed the decision. The Illinois Court of Appeals overturned the summary judgment, ruling that the evidence was compelling enough to allow a jury to decide the case.

The appellate court turned to several sources in making its decision. A Chicago police detective responding to the scene of the rape testified that there was “no lighting at all” and said that he had to use a flashlight to find Bourgonje’s personal effects. As the detective returned to the front of the building, a floodlight flared to life, temporarily blinding him.

Evidence also showed that there was significant crime in the area around the mansion. Prior to Bourgonje’s attack, the police received 10 reports of sexual assault as well as numerous reports of robberies and muggings. The mansion was located less than a mile from a halfway house for newly released prison inmates.

Bourgonje’s assailant, Juan Delgado, was arrested, tried, and jailed for the rape. After his sentencing, Delgado confessed to the attack. He said that he initially planned only to rob Bourgonje but saw that the area was dark and so decided to drag her across the courtyard to commit the crime. The court found that Delgado’s statements could allow a jury to infer that “even if he was unaware of the fact that the exterior of the mansion was unlit prior to commencing the robbery, he subsequently elected to rape Bourgonje because of his ability to operate in darkness on the mansion grounds.” (Bourgonje v. Machev, Illinois Court of Appeals, No. 1-04-1873, 2005)

NEGLIGENT RETENTION. In a case before the Michigan Supreme Court, an employee hired to work in a Ford Motor Company cafeteria by a third-party catering firm may not sue Ford for negligent retention.

Ford Motor Company hired AVI Food Systems to oversee three cafeterias at its Wixom, Michigan, assembly plant. Milissa McClements was hired by AVI to work as a cashier in March 1998.

In November 1998, Daniel Bennett asked McClements on several occasions to meet him for dinner. Bennett, who was a Ford employee, also grabbed McClements from behind, turned her around, and tried to kiss her. McClements rebuffed Bennett’s advances, and he left the cafeteria. McClements reported the incident to her union steward, who advised her not to report it to Ford. The steward told McClements that if she did report the incident, she could lose her job.

In 2000, a Ford employee, Justine Maldonado, approached McClements and said that she had been sexually harassed by Bennett. Maldonado claimed that Bennett had demanded sexual favors from her, exposed himself to her, and followed her when she left work. Maldonado reported the incident to David Ferris, a Ford employee assigned to her union. Ferris told Jerome Rush, the plant’s director of labor relations. Rush told Ferris that he need not be involved in those types of issues in the future. Rush took no action.

McClements still did not immediately take any action on her harassment. However, when she learned that Bennett had been convicted of indecent exposure in 1995—Bennett had exposed himself to three teenage girls while driving in a company car—McClements filed a sexual harassment lawsuit against Ford. In the lawsuit, she charged that Ford had negligently retained Bennett, though it knew that he had a history of sexual harassment.

Ford filed a motion for summary judgment. The trial court granted the summary judgment, ruling that there was no evidence that Ford knew of Bennett’s sexual harassment in the workplace, so it could not be held liable for negligent retention.

The trial court also ruled that because McClements was not an employee of Ford, she could not sue for sexual harassment under state law. McClements appealed.

The Michigan Court of Appeals held that Ford’s knowledge of Bennett’s arrest and Maldonado’s allegations could mean that the company knew or should have known of Bennett’s behavior toward women. However, the court upheld the decision that McClements could not sue Ford even if the company was negligent because she was not an employee. McClements appealed once again.

The Michigan Supreme Court determined that McClements could not pursue her claim against Ford. It cited two reasons for the basis of its decision.

The first related to the type of lawsuit filed. McClements filed her sexual harassment claim under the tort of negligent retention. Michigan law, ruled the court, does not specifically allow negligent retention claims to be based on an underlying crime of sexual harassment. In other words, McClements could pursue her case if her claim were based on assault.

Further, the court ruled that McClements’s sexual harassment claim against Ford could not proceed because the company did not exercise control over the terms, conditions, or privileges of her employment. While state law does allow nonemployees to bring suit, it requires that there be some form of connection between the two parties. This means that McClements’s case would rest on how much control Ford had over her work status. In this case, the court ruled that McClements could not establish that Ford had this type of control over her employment.

Two of the seven judges in the case offered dissenting opinions. One argued that McClements had offered evidence of Ford’s control over her work. When McClements complained about Bennett to her union steward, she was warned not to take action or she might lose her job. While this statement alone did not prove that Ford controlled McClements’s employment, it raised sufficient questions for the case to be put before a jury, said one dissenting judge.

Another judge took exception to the court’s negligent retention ruling. Though the law does not specifically state sexual harassment as an underlying crime of negligent retention, the judge wrote, this should not have been a barrier in the case. McClements should have been able to pursue her case because the actions taken against her, notably grabbing her and attempting to kiss her, are evidence of assault and battery under the law, the judge wrote. (McClements v. Ford Motor Company, Michigan Supreme Court, No. 126276, 2005)


CHEMICAL WEAPONS. The House Homeland Security Committee has approved a bill (H.R. 3197) that would regulate the purchase of ammonium nitrate. The provision must now be taken up by the House of Representatives.

The bill is designed to keep the substance, which can be used to make bombs, out of the hands of terrorists. It would require that those who handle ammonium nitrate register with the Department of Homeland Security (DHS) and provide the department with records of sale or distribution including the names, addresses, phone numbers, and registration numbers of buyers. The DHS could inspect businesses that might handle ammonium nitrate, without a warrant, during regular business hours.

TAX CREDITS. A bill (S. 2052) introduced by Sen. Pat Roberts (R-KS) would provide a security-related tax credit for businesses that sell agricultural chemicals or manufacture, formulate, or distribute certain pesticides. The tax credit would be for 30 percent of the costs for protecting those chemicals and would expire in 2010.

S. 2052 has three cosponsors and has been referred to the Senate Finance Committee.


South Carolina

DRUG TESTING. In South Carolina, employees become ineligible for unemployment benefits if fired for failing a drug test. A new state law (formerly A.B. 50) requires an employer to prove that it followed certain procedures before firing an employee for failing a drug test. If the company cannot offer such proof, the employee will not be disqualified from receiving unemployment benefits.

If a drug test is positive, employers must prove that the sample was collected and labeled by an authorized party, such as a licensed healthcare provider. The test must be performed by a certified lab and the initial positive test must be confirmed by a nationally accepted method.

The law also provides that employees may not receive benefits if they fail or refuse to provide a specimen or provide a specimen that has been tampered with.


VIDEO MONITORING. A new Wyoming law (formerly S.B. 129) makes it a felony to intentionally and surreptitiously record images of people in an enclosed area where they have an expectation of privacy, such as a bathroom, shower, or dressing room. Under the law, those who wish to record dressing rooms for security purposes, for example, must clearly post their intentions or get the consent of the persons being viewed.

This column should not be construed as legal or legislative advice.