You’ve heard of the negligent hiring case.
Should we now get ready for "negligent exposure" cases?
A Connecticut Superior Court recently allowed a claim of negligence to proceed by a subordinate against a supervisor, on the grounds that the supervisor drew the subordinate into a dispute with another employee, exposing the subordinate to the costs of having to defend a discrimination claim.
It is alleged that the supervisor directed the subordinate to join a conversation in which the supervisor allegedly made demeaning remarks to another employee. (The other employee has sued the subordinate and supervisor and others for damages arising out of an alleged assault.)
The case, Wright v. Judge, 50 Conn. L. Rptr 357 (September 1, 2010) (download here), appears to be the first of its kind, at least in Connecticut. (A quick search of Westlaw today showed nothing remotely similar. Heck, even Wikipedia is silent about it.) The court’s opinion did not cite any cases in Connecticut (or elsewhere) that has allowed such a claim to proceed to discovery (or a trial).
How did the judge get there? Three simple steps:
- First, the court found it foreseeable. "An ordinary person in [the supervisor’s] position would know or should have known that by involving an unwitting subordinate employee in the physical and racial harassment of another employee, the subordinate employee could be subjected to liability by the harassed employee."
- Second, the court said that public policy justifies the imposition of a duty to aid or protect another. The court said this existed here because the subordinate alleged that the supervisor was in the "custody and control" of the subordinate at all times, thereby creating a "duty to protect him".
- Third, the court found that there was "proximate cause" because it was a substantial factor in the resulting harm. "The court finds that the harm which allegedly occurred [costs and legal fees of defending a discrimination claim] … was of the same general nature as the foreseeable risk…"
Based on the court’s logic, however, it would seem to open the door other claims by co-workers as well. It will be unclear for some time if this case will be an outlier or just a precursor to other claims.
For employers, it is yet another reminder to stay vigilant in the area of employment law for the ever-changing landscape.