State Torts – Civil Assault, Battery, Employer Negligence
While most employment litigation in Georgia involves either a federal employment statute, such as Title VII, or is grounded in a contractual dispute, such as a failure to pay commissions, employment disputes can give rise to state-law torts depending on the conduct alleged. For example, if an employer’s manager subjects her to sexual harassment that includes offensive touching, this conduct may give rise not only to claims for sexual harassment under Title VII but also to civil assault and battery causes of action against both the manager and the employer. Further, the employee may also be able to assert a claim against the employer for negligent hiring and retention if she can show that it should have known that it was foreseeable that the harasser would engage in the behavior at issue.
Atlanta employment attorney Justin Scott provides representation to both employers and employees in cases in which there are allegations of tortious conduct arising out of the employment relationship.
Georgia law creates a cause of action for civil battery when one person unlawfully touches another. Generally speaking, an unlawful touching is “one which is ‘offensive,’ and an ‘offensive’ touching is one which proceeds from anger, rudeness, or lust.” Newsome v. Cooper–Wiss, Inc., 179 Ga.App. 670, 672, 347 S.E.2d 619, cert. denied (1986). What is “offensive” in this context is measured based on an objective “reasonable person” standard, meaning that the analysis addresses whether a reasonable person would find the contact at issue to be offensive.
In general, an employer is not liable for torts such as civil battery committed by its employees. This is because such an action is considered to be “purely personal in nature” and therefore outside the scope of the employment of the person who committed the act. However, arguably, employers may regardless be liable for such torts if they ratified the conduct. Fowler v. Sunrise Carpet Indus., Inc., 911 F. Supp. 1560, 1585 (N.D. Ga. 1996)1. Further, as set forth below, employers may be liable for negligent hiring and retention if the plaintiff demonstrates that the employer knew, or in the in the exercise of reasonable care, “should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.” Harvey v. McLaughlin, 198 Ga.App. 105, 107, 400 S.E.2d 635 (1990).
Assault, as distinct from battery (although the two are frequently conflated), occurs “‘when all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.’” EEOC v. Nunez, Inc., 2011 WL 13168394, at *21 (N.D. Ga. February 28, 2011) (quoting Everett v. Goodloe, 268 Ga. App. 536, 543 (2004)). The assault therefore is the injury caused when the person reasonably expects that the offensive touching will occur. As with the intentional tort of battery, an employer is not generally liable for an assault committed by an employee acting outside the scope of his employment unless the plaintiff can show ratification and/or pursues the theory of negligent hiring and retention.
Negligent Hiring & Retention
As stated above, an employer may be liable for negligently hiring or retaining an employee who commits a civil tort, such as a sexual battery, if the plaintiff demonstrates that the employer knew, or in the in the exercise of reasonable care, “should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.” Magnum v. Republic Indus., Inc., 260 F. Supp. 2d 1229, 1255 (N.D. Ga. 2003). Plaintiffs in these cases will point to the past conduct of the harasser, and complaints made to the employer about his conduct, to demonstrate that it should have been foreseeable that he would harass the plaintiff and/or other co-workers. See Pittman v. Ulmer Enter. Inc., 2006 WL 8432198, at *5 (N.D. Ga. June 23, 2006) (“Past complaints of harassment against a particular employee, made to the employer, provide an employer with knowledge of that individual’s propensity for such conduct for purposes of negligent retention.”).
Contact Radford Scott LLP at (678) 780-4880 for assistance with employment disputes, including civil battery, assault and/or negligent hiring and retention, or contact the firm online here.1 There is currently an open question under Georgia law as to whether an employer can ratify an action taken by an employee which was not done for the employer’s benefit. See Travis Pruitt & Assoc., P.C. v. Hooper, 277 Ga. App. 1 (2006).