Our last post dealt with circumstances attaching liability to a landlord for employees’ acts that were “not so unusual” that imposing liability would be unfair. Teaching someone how to drive a lawnmower when a landlord has a lawnmower on his premises and uses it for business, while not necessarily productive towards the job goal, is not something that would be so unexpected.
But what about criminal conduct? There are many circumstances in which an employee commits a criminal act and harms someone else. The delivery driver uses the opportunity of delivery to harm the person or property of the customer, intentionally. The bartender batters a customer for no apparent reason. A landlord’s property manager absconds with personal information in the files and steals from tenants.
Is the employer/landlord liable? It depends. If the intentional criminal conduct has a connection to the work, maybe. A random, unanticipated assault does not have any connection to delivery of packages. Hence the unforeseen assault by the delivery driver does not attach liability to the employer (unless the driver had a criminal history of assault the employer did not research.) But the line gets more blurred when the bartender assaults a patron. Is it “so unsual” for a bar tender to confront, and even strike, a patron? Anyone who has been in to a bar understands that patrons can get out of hand, and it may not be totally disconnected to the job of a bartender to control (and therefore strike?) a customer.
A property manager who steals the tenants’ financial information gets even closer to the vicarious liability realm. Even though such conduct is intentional on the part of the employee, collecting certain financial information from the tenant is par for the course in landlord-tenant situations. I have not seen a case on it, but I think it would be likely that liability would attach to the employer. There is a connection between the collection of the information and taking appropriate steps to safeguard it. Even if the employee had no track record, the crime he commits is not disconnected from the business of renting a dwelling unit.
The lack of connection between the perpetrator and his employer means that in some very tragic circumstances — random assaults — there would be no monetary compensation for a victim. There would be no resort to his employer. But as tragic as that would be to the victim, it is more than fair to the employer, who did not do the harm, nor benefit from the untethered act.
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