Government Liability for its employees under respondeat superior.

In Hamed v Wayne County and Wayne County Sheriff’s Department, __ Mich __ (#139505, 7/27/2011) the Michigan Supreme Court considered the scope of an employer’s vicarious liability for quid pro quo sexual harassment affecting public services under Michigan’s Civil Rights Act (CRA).     In Hamed, the Supreme Court held that Wayne County and its sheriff’s department may not be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment under traditional principles of respondeat superior.

The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment.  It follows that “an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer’s business.”  This Court has defined “within the scope of employment” to mean “‘engaged in the service of his master, or while about his master’s business.’” Independent action, intended solely to further the employee’s individual interests, cannot be fairly characterized as falling within the scope of employment.  Although an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer’s business.

The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance.  This Court has consistently recognized that an employer can be held liable for its employee’s conduct if “the employer ‘knew or should have known of [the] employee’s propensities and criminal record’” before that employee committed an intentional tort.  This inquiry involves an analysis of whether an employer had (1) actual or constructive knowledge of prior similar conduct and (2) actual or constructive knowledge of the employee’s propensity to act in accordance with that conduct. Under this two-pronged approach, the conduct at issue may be so close in time to prior similar conduct that knowledge under the first prong gives rise to a valid inference that the conduct was foreseeable under the second prong. Conversely, if an employee’s actions were temporally distant and the employee’s recent record suggested a change in character, foreseeability would not be established.  

In summary, an employer’s liability for the criminal acts of its employees is limited to those acts it can reasonably foresee or reasonably should have foreseen.