Keller v. Koca

• Citation: 111 P.3d 445
• Decision Date: 18 April 2005
• Docket Number: No. 04SC304.,04SC304.
• Parties: Donald KELLER, individually and d/b/a Continental Cleaners, Petitioner, v. Tugba KOCA, a minor child, by and through her legal guardian, Paula Alpar, Respondent.
• Court: Supreme Court of Colorado

111 P.3d 445

Donald KELLER, individually and d/b/a Continental Cleaners, Petitioner, v. Tugba KOCA, a minor child, by and through her legal guardian, Paula Alpar, Respondent.

No. 04SC304.

Supreme Court of Colorado.

April 18, 2005.

As Modified on Denial of Rehearing May 16, 2005.

Hall & Evans, L.L.C., Alan Epstein, Elwyn F. Schaefer & Associates, P.C., Elwyn F. Schaefer, Andrea J. Kershner, Denver, for Petitioner.

Winer & Ramsay, Jeanne Winer, Boulder, for Respondent.

Chief Justice MULLARKEY dissents.

BENDER, Justice.

Donald Keller appeals the court of appeals' decision that he was negligent in the supervision of his employee, Firat Uzan. Koca v. Keller, 97 P.3d 346 (Colo.App.2004). Uzan, acting without Keller's authorization, brought the plaintiff, a twelve year-old girl, to Keller's dry cleaning business early on a Sunday morning when it was closed for business, locked her in the office and sexually assaulted her.

We hold that in a claim for negligent supervision against an employer the plaintiff must prove that the defendant knew his employee posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of that risk. While Keller knew or should have known that Uzan posed a risk of harm that he would subject female employees and customers to lewd behavior and sexual contact during business hours, Uzan's sexual assault of a twelve year-old girl, the daughter of Uzan's friends, at Keller's place of business while it was closed and when Uzan was supposed to be alone is not a foreseeable result of the known risk of harm. Hence, we reverse the decision of the court of appeals and remand this case to that court to consider the plaintiff's alternate theory of premises liability.

Facts and Proceedings Below

Donald Keller, defendant below and petitioner before this court, owned and operated a dry cleaning business in Boulder, Colorado. Keller hired Firat Uzan, a male employee, in 1990 and then promoted him to the position of General Manager in the spring of 1995. As General Manager, Uzan had keys to the premises and was responsible for operating the dry cleaning business, which included opening and closing the store, in Keller's absence and at his direction. However, Uzan did not have the authorization to bring third parties to the business during non-working hours.

On a Sunday morning in the spring of 1997, Uzan brought a twelve year-old girl, the plaintiff Tugba Koca, to the business. Testimony revealed that Uzan was a family acquaintance and had asked Koca's parents if she could go with him to the dry cleaners and help with opening the doors of the business so that the carpets could be professionally cleaned. While there, Uzan brought Koca into the back office where he locked the door and sexually assaulted her.

Uzan was subsequently convicted of sexual assault of a child and sentenced to the Department of Corrections. The plaintiff then filed this civil action against Keller claiming that Keller, as the employer and owner of the dry cleaning business where the assault occurred, was negligent in his supervision of Uzan. The complaint alleged that Keller knew that Uzan had sexually harassed young women at the cleaners and that despite knowing that "his employee was a sexual predator," Keller continued to allow Uzan to work alone and unsupervised with his own access to the premises.

The trial court, acting as the finder of fact, found that Keller was negligent in his supervision of Uzan and awarded damages. The court cited testimony from three former women employees who told Keller that Uzan had sexually harassed and fondled them during business hours prior to the incident identified by the plaintiff. The young women related several instances where, during business hours, Uzan asked them to perform sexual acts as well as touched their breasts and buttocks. All three quit their positions and told Keller of the episodes. Additionally, one of the employee's mothers called Keller warning of civil liability. The three women also complained to police about Uzan's conduct but the police did not initiate charges against him. When Keller confronted Uzan about these complaints, Uzan denied any sexual misconduct and Keller did not pursue the matter any further.

Keller appealed the trial court's finding of liability and the court of appeals affirmed. Koca v. Keller, 97 P.3d 346 (Colo.App.2004). The court reasoned that Keller had knowledge of the previous assaults and that "there was a risk that Uzan would sexually assault a young woman or girl on the premises if left unsupervised." Id. at 350. Thus, it held that Keller had a duty to take reasonable steps to prevent Uzan from working alone and unsupervised and the breach of this duty resulted in the harm to the plaintiff. Id.

We granted Keller's petition for certiorari to review the court of appeals' decision.¹

Analysis

The issue that we address is the extent to which an employer owes a duty of care to prevent harm caused by an employee. We begin by setting forth the legal principles that guide us in determining whether an employer is liable in tort for the negligent supervision of his employee.

To establish a claim based on negligence, the plaintiff must show: (1) the existence of a legal duty to the plaintiff; (2) the defendant breached that duty; and (3) that the breach of the duty caused the harm resulting in damages to the plaintiff. Ryder v. Mitchell, 54 P.3d 885, 889 (Colo.2002) (citing Greenberg v. Perkins, 845 P.2d 530, 533 (Colo.1993)); Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo.1992). A negligence claim fails where the law does not impose a duty on the defendant to act for the plaintiff's benefit. Ryder, 54 P.3d at 889 (citing Greenberg, 845 P.2d at 533, and Perreira v. Colorado, 768 P.2d 1198, 1208 (Colo. 1989)). Whether a defendant in a particular negligence action owes a legal duty to the plaintiff is not a question of fact but is a question of law to be determined by the court. Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1147 (Colo.1993). After the court determines the existence of a legal duty, then the finder of fact is to determine whether the defendant breached that duty. Perreira, 768 P.2d at 1208.

Courts consider a number of factors to determine whether a duty exists, including: the risk involved, the foreseeability of the injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden on the actor. HealthONE v. Rodriquez, 50 P.3d 879, 888 (Colo.2002); Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987). "No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards — whether reasonable persons would recognize a duty and agree that it exists." Connes, 831 P.2d at 1320 (quoting Taco Bell, Inc., 744 P.2d at 46).

To establish liability, the plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm. Moses v. Diocese of Colorado, 863 P.2d 310, 329 (Colo.1993); Destefano v. Grabrian, 763 P.2d 275, 286-88 (Colo. 1988) (adopting doctrine of negligent supervision in Colorado). See also Restatement (Second) of Agency § 213 (1958); and Restatement (Second) of Torts § 317 (1965). An employer "who knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm may be directly liable to third parties for harm proximately caused by his conduct." Destefano, 763 P.2d at 288.

While the tort of negligent supervision applies to instances where the employee is acting outside his scope of employment,² it does not extend to all acts undertaken by an employee that are actionable in tort. In cases of negligent supervision "[l]iability of the employer is predicated on the employer's antecedent ability to recognize a potential employee's `attribute[s] of character or prior conduct' which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities." Moses, 863 P.2d at 327 (quoting Connes, 831 P.2d at 1321). See also, Van Osdol v. Vogt, 892 P.2d 402, 409 (Colo.App. 1994) (affirming trial court's dismissal of negligent supervision claim where defendant did not know of employee's sexual abuse of a minor) aff'd, 908 P.2d 1122 (Colo.1996); Restatement (Second) of Agency § 213 cmt. d ("Liability results under the rule stated in this Section, not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment."); Restatement (Second) of Torts § 317 cmt. b ("[T]he master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master's premises, unless the servant is at the time using a chattel entrusted to him as servant."); P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn.1996) (holding employer not liable for employee's intentional tort which was unforeseeable by the employer even though assault occurred "within work-related limits of time and place").

Thus, where a plaintiff asserts a claim for negligent supervision, the question of whether the employer owes a duty of care to the injured third party boils down to issues of knowledge and causation—whether the employee's acts are "so connected with the employment in time and place" such that the employer knows that harm may result from the employee's conduct and that the employer is given the opportunity to control such conduct. Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 896 (1934); Fowler V. Harper et al., The Law of Torts § 18.7, at 738 (2nd ed.1986) (stating: "Thus a master may be bound to control...