That's What She Said

Watch your back, Oscar

Litigation Value: $250,000 in attorneys’ fees and to settle Oscar’s claims–unless his guilt and his desire not to embarrass himself or out the Senator by disclosing their affair keeps him from making a big deal out of it.

A holiday season rerun of “The Target,” first covered by my colleague Brian Kurtz a few weeks ago: The main story line, and the one with potential for labor and employment exposure, centers on Angela enlisting Dwight’s help in locating a “hit man” to kneecap Oscar in payback for his affair with Angela’s husband, the Senator. Dwight doesn’t realize that Oscar is the intended target at first, and when he learns that is the case, he ultimately is successful in helping stop the “hit” before it can occur (though he does get a kick in the shins from Angela).

Brian focused on the potential criminal law implications of this scenario. I am going to take a different approach and look at whether Dunder Mifflin itself could be on the hook for liability arising out of this messy event involving a trio of its employees. Even though Oscar isn’t physically injured, he could plausibly claim emotional harm from the effort to take him down. But can that be laid at the feet of the employer? Surely Angela’s efforts to harm Oscar because of their love triangle are purely personal and unrelated in any way to the company’s legitimate business, right? True enough–but I think that Oscar could bring a negligent retention claim against Dunder Mifflin based on Dwight’s role in this business. Dwight certainly has demonstrated on numerous occasions that he has an unpredictable and violent side, including shooting Andy and stashing a variety of weapons throughout the office. Oscar could argue that Dunder Mifflin was well aware of these tendencies and was neglient in continuing to retain him despite them. Even though Dwight was only a middleman in the attempted attack, he did play the critical role of introducing Angela to the “hit man.”

The company ultimately might prevail based on a lack of foreseeability, but it would still incur some substantial fees to do so, and might be worth settling to avoid unwanted publicity. Given Oscar’s own conflicted feelings about the affair, however, and the fact that the attack did not succeed, I wouldn’t be surprised if he quietly let the matter drop and take his medicine–sore shins–for backstabbing his co-worker as he did.