Legal Question in Business Law in California

Re: Criminal Liability

what do you mean by "establisments care" --- i hve never heard of it before?????????

Re: Criminal Liability

Depends upon the facts. You'd better consult with local counsel quickly to discuss and prepare for investigation. If the employee was known as a problem or had a history, yes you could be.

Re: Criminal Liability

Criminal liability is rather unlikely, and would most likely arise if you were operating your establishment unlawfully, e.g. employing teenagers as barmaids.

Civil liability is another matter. You could be liable on a negligence theory, i.e. you owed the victim a duty of care and breached that duty, leading to the assault; or a 'respondeat superior' theory, which means that the master (nowadays, 'employer') is responsible for the torts (civil wrongs) of his servants (employees).

The negligence theory could be formulated in one of several ways, including "negligent hiring" (not screening out the bad apples) "negligent training" (or supervision), or breach of some other duty specific to your business or the situation that allowed the incident to occur.

"Respondeat superior" is a little different; negligence (a duty and its breach) is not required; the employer can be held liable for any tort (including assault, battery, false imprisonment, etc.) committed by an employee in the scope of the employment.

What is meant by "scope of the employment" is rather technical. It does not require that the tort be committed on the employer's premises or during work hours, necessarily; neither does it require that the act be within the job description. The controlling definition seems to be whether the risk of such an act is typical of or broadly incidental to the employer's enterprise.

For example, there is a fairly recent California Supreme Court decision holding that rape of a female detainee by a male police officer was within the scope of employment. A later Supreme Court concurring opinion in another case criticized that ruling as "aberrant."

So, especially without more facts, I couldn't begin to guess whether you would be liable under this theory. It's an uncertain area of the law at best. You are, however, clearly at risk of being sued and having to defend; but you may win.

Re: Criminal Liability

Did you know about the person's propensity to commit rape? Does this employee have a criminal record? Did you check before hiring them?

What is your relationship to the person who was raped? Is this person under complete care?

There are MANY questions that need answers before any type of answer can be made.

Please feel free to review some of the employer-employee laws on our firm's site at www.RulesofEmployment.com

Scott