Legal Report March 2008
U.S. JUDICIAL DECISIONS
NEGLIGENCE. A Tennessee appeals court has ruled that a housing complex could not have predicted that one of its tenants would shoot another resident. The court ruled that the company met its obligations by conducting a background check on the assailant before he moved into the complex.
L.C. Miller lived in an apartment complex operated by the Memphis Housing Authority (MHA) in 2002. In March of that year, the 70-year-old Miller was reprimanded by a security officer for cursing in the public areas of the complex. The officer was employed by Scruggs Security and Patrol, which had been retained by MHA.
After chastising Miller, the security officer went to the restroom, located outside MHA’s management office. Miller went to his apartment and retrieved a rifle. When the security officer came out of the restroom, Miller began shooting. He missed the officer but struck and killed Charles Brown, who was standing in the management office at the time.
Brown’s family sued MHA for negligence, arguing that it failed to properly screen Miller before leasing an apartment to him. The plaintiffs also argued that MHA should have evicted Miller over a prior violent incident when he stabbed a fellow tenant.
MHA requested summary judgment—a hearing based on the facts of a case without a trial. The housing authority argued that it had conducted a background check on Miller when he submitted an application in 1996. The background check, which covered the previous three years, failed to uncover any incidents that would have prevented leasing to Miller.
In regards to the stabbing in 1998, the head of security for MHA testified that Miller had attacked his neighbor with a pocket knife, claiming that the neighbor had been singing too loudly. Miller was arrested for assault, and MHA put him on probation for one year. The security manager testified that while he was not charged with making recommendations on evictions, he knew that the housing authority had a “one-strike” policy under which a single incident could lead to the eviction of a tenant.
Nonetheless, the circuit court granted the summary judgment, finding that MHA’s internal policies created no duty to protect Brown. The plaintiff appealed.
The appeals court upheld the decision, ruling that MHA took steps to protect tenants by conducting a background check. The court ruled that the single stabbing incident did not indicate that Miller would shoot Brown. In its written opinion of the case, the court noted that it could “not support a finding that such an isolated outburst by Miller was sufficient to notify MHA that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time.” (Giggers v. Memphis Housing Authority, Tennessee Court of Appeals, No. W2006-00304-COA-R3-CV, 2007)
VICARIOUS LIABILITY. A county agency is not vicariously liable for a murder committed by an employee. The employee’s drug use, affair, and theft of poison used to commit the murder did not, according to the court, create a special duty on the part of the county.
Kristen Rossum had a history of drug abuse but had been drug free for two years when she was hired as a student worker by the San Diego County’s Office of the Medical Examiner (OME) in 1997. At that time, the OME had no drug or alcohol testing policy. Rossum was not required to answer any questions about her drug use or criminal history on her job application.
In March 2000, Rossum was promoted to toxicologist. Company policy required that all applicants for the toxicologist post pass a drug test and a background check. Though Rossum signed waivers allowing the screening procedures, neither was conducted. She was not, however, taking drugs at that time.
In the spring of 2000, Rossum began an affair with her supervisor, Michael Robertson. In the fall of 2000, Rossum started using drugs. Robertson was aware of her drug use, but contrary to county policy, he did not report the problem to the department head.
On November 2, 2000, Rossum’s husband, Greg de Villers, confronted her about her affair and her drug use. He demanded that she quit her job, end her affair, and start drug rehabilitation treatment. If she refused, de Villers said, he would report her to the county.
A few days later, on November 6, Rossum called 911 and reported that de Villers had stopped breathing. Paramedics transported de Villers to the hospital, where he was pronounced dead.
Medical examiners determined that de Villers had been dead for more than an hour before paramedics were called and in a coma for up to 12 hours before that. The cause of death was fentanyl poisoning.
During the subsequent investigation, police found that 15 doses of fentanyl were missing from OME’s supplies. Rossum had logged out the fentanyl and could not account for its whereabouts. Based on this and other evidence, Rossum was tried for first degree murder. She was convicted and sentenced to life in prison without the possibility of parole.
The family of de Villers filed a lawsuit against OME under the legal theory of vicarious liability. The plaintiffs argued that OME’s negligence in hiring, screening, and supervising Rossum led to de Villers’ death. A jury found in favor of the plaintiffs. OME appealed the decision.
The appeals court found in favor of the defendants, overturning the lower court’s decision. In its written opinion of the case, the court rejected the plaintiffs’ theory that a coworker who suspected a fellow employee of having a substance abuse problem while having an extramarital affair should be held liable for failing to anticipate the criminal act of violence that the employee would later commit against her spouse.
The court found that Rossum’s coworkers did not owe a duty to de Villers, so OME cannot be vicariously liable for its employee’s failure to prevent the murder. (Marie de Villers v. County of San Diego, California Court of Appeal, No. D048974, 2007)
RACIAL DISCRIMINATION. The Equal Employment Opportunity Commission (EEOC) has announced an increase in racial discrimination lawsuits filed with the agency. Racial discrimination cases overall have risen from 3,075 in 1991 to more than 7,000 in 2007.
One rising trend has been lawsuits involving incidents where someone displayed hangman’s nooses in the workplace. The EEOC has recently filed or settled more than 20 cases involving nooses.
For example, Helmerich & Payne International Drilling settled a lawsuit for $290,000 after employees hung nooses on an oil rig as part of an overall pattern of harassment against black employees. In another case, Pemco Aeroplex agreed to pay $300,000 in a hostile workplace suit where employees displayed nooses, swastikas, and KKK graffiti in work areas.
U.S. FEDERAL LEGISLATION
DOMESTIC VIOLENCE. A bill (H.R. 4015) introduced by Rep. Lucille Roybal-Allard (D-CA) would prohibit employers from discriminating against employees who are victims of stalking.
Under the bill, employers could not discriminate against or refuse to hire someone who is being stalked or is the victim of domestic violence. The employer would be required to allow such employees to take leave to participate in or prepare for court appearances. Employers would not be able to take action against an employee because of a request to increase security in the workplace.
Employers who violate these provisions could be liable under the bill.
H.R. 4015 has five cosponsors and has been referred to the House Judiciary Committee, the House Oversight and Government Reform Committee, and the House Education and Labor Committee.
FOOD SAFETY. A bill (H.R. 3967) introduced by Rep. Michael Burgess (R-TX) would allow the U.S. Department of Health and Human Services (HHS) to refuse admission of food into the United States under certain circumstances. (Currently, the Food and Drug Administration oversees the inspection of imported food.)
Under the bill, HHS would be allowed to prohibit the importation of food if the importer has been associated with repeated and separate outbreaks of foodborne disease or the food has been repeatedly determined to be adulterated. Food could also be refused entry if it presented a reasonable probability of causing significant adverse health consequences or disease. Under the bill, the government could make an emergency determination to refuse admission of food that had been strongly associated with a single outbreak of foodborne disease that had caused adverse health consequences or death.
H.R. 3967 has no cosponsors and has been referred to the House Energy and Commerce Committee’s Subcommittee on Health.
DRUG TESTING. A law (P.L. 339) recently enacted in Maine would allow temporary employment agencies to obtain a waiver allowing them to forgo drug testing on an employee as long as the client company has a drug testing policy that includes the temporary worker.
The law also prohibits employers from asking workers to sign any form that limits the employer’s liability in relation to a drug testing program.
This column should not be construed as legal or legislative advice.