The Ohio Supreme Court recently resolved a split of opinion among the state’s appellant courts by ruling an employer can be sued for damages for an employee’s misconduct under negligent hiring, retention, or supervision theories without having to prove the individual committed a crime or was civilly liable in connection with the underlying wrongful act.
Facts
In November 2014, Malieka Evans sued Akron General Medical Center (AGMC) alleging she had been abused, assaulted, and battered while seeking treatment at AGMC’s emergency room. She claimed Dr. Amir Shahideh sexually assaulted her while she was sedated. Her complaint alleged the sexual abuse she experienced was the direct result of the medical center’s negligent hiring, supervision, or retention of the physician.
Evans didn’t file any personal injury claims against Shahideh himself. Also, local law enforcement authorities declined to pursue criminal charges against him.
Evans’ lawsuit was filed in the Summit County Court of Common Pleas. In 2016, the trial court granted summary judgment (or dismissal without a trial) to AGMC based on the alleged victim’s failure to file any claims against Shahideh himself and her inability to establish his civil liability or guilt of a criminal offense. The trial court concluded that under existing Ohio law, she had no right to pursue the negligent hiring claim against the medical center without showing the doctor’s liability.
The trial court’s decision was appealed to the Court of Appeals for Summit County. In 2018, in a 2-to-1 decision in which one of the judges dissented, the appellate court reversed the trial court and decided proof of the employee’s liability wasn’t required to maintain a negligent hiring, supervision, or retention action against the employer.
The court of appeals observed, however, there appeared to be a split of opinion among Ohio courts on the issue. Therefore, the supreme court agreed to take up the case to resolve the split of authority.
Ohio Supreme Court’s Decision
On December 8, 2020, the supreme court issued a decision ultimately answering the question in favor of people filing negligent hiring, retention, and supervision claims. To survive summary judgment in such cases, the individual must show an employee committed a wrong recognized as a tort (or wrongful injury) or a crime in the state of Ohio and not that the wrong has been proven to be tortious or criminal in a court proceeding. The court noted:
Based on the allegations in this case, Dr. Shahideh allegedly did something that is legally cognizable as wrongful: the sexual abuse of a patient. Whether he can be found civilly liable or guilty of a crime is quite different from whether his conduct was legally wrongful.
The supreme court also confirmed the statute of limitations for filing a negligent hiring, supervision, or retention claim against an employer is 2 years, regardless of the nature of the employee’s underlying tort or offense. In so doing, the court rejected AGMC’s argument that the 1-year statute of limitations applicable to civil assault and battery claims (which would have applied had Evans sued the doctor himself) also should apply to her claims against the medical center.
The supreme court referred the case back to the trial court for further evidentiary proceedings because genuine issues of material fact still existed about the doctor’s alleged gross misconduct. Evans v. Akron Gen. Med. Ctr., 2020-Ohio-5535 (Dec. 8, 2020).
Takeaways
Some employer advocacy groups have already criticized the Evans decision as imposing an “unworkable” burden on employers. It certainly eliminates some hurdles with which plaintiffs previously had to contend.
Employers can now be sued in Ohio for negligent hiring, retention, or supervision claims, even without the employee(s) in question being named in the suit and regardless of whether criminal charges were filed against anyone for the underlying wrongful conduct.
The case is a good reminder that you have a legal duty not just to your workforce but also to customers and the general public to exercise reasonable caution and care when it comes to hiring, training, supervising, and retaining employees.
Franck G. Wobst is a labor and employment attorney with Porter Wright Morris and Arthur in Columbus, Ohio. You can reach him at fwobst@porterwright.com.