KOCA EX REL. ALPAR v. Keller

• Decision Date: 08 April 2004
• Docket Number: No. 02CA2498.,02CA2498.
• Parties: Tugba KOCA, a minor child, by and through her legal guardian, Paula ALPAR, Plaintiff-Appellee, v. Donald KELLER, individually and d/b/a Continental Cleaners, Defendant-Appellant.
• Court: Colorado Court of Appeals

97 P.3d 346

Tugba KOCA, a minor child, by and through her legal guardian, Paula ALPAR, Plaintiff-Appellee, v. Donald KELLER, individually and d/b/a Continental Cleaners, Defendant-Appellant.

No. 02CA2498.

Colorado Court of Appeals, Div. IV.

April 8, 2004.

Certiorari Granted September 13, 2004.

Winer and Ramsay, Jeanne Winer, Boulder, Colorado, for Plaintiff-Appellee.

Hall & Evans, LLC, Alan Epstein, Denver, Colorado; Elwyn F. Schaefer & Associates, P.C., Elwyn F. Schaefer, Andrea J. Kershner, Denver, Colorado for Defendant-Appellant.

Opinion by Judge CASEBOLT.

In this negligence action, defendant, Donald Keller, individually and doing business as Continental Cleaners, appeals the judgment entered against him in favor of plaintiff, Tugba Koca. We affirm in part, reverse in part, and remand.

Defendant employed Firat Uzan, a native of Turkey, as the manager of his dry cleaning business. Defendant authorized Uzan to open the business premises one Sunday morning to let in a carpet cleaner. Unbeknownst to defendant, Uzan brought plaintiff, a twelve-year-old family friend recently arrived from Turkey, with him that morning. Once inside the business, Uzan locked plaintiff in a back office and sexually assaulted her. Subsequently, Uzan sexually assaulted plaintiff on three separate occasions at locations other than Continental Cleaners.

Plaintiff asserted alternative claims for relief against defendant based on negligent supervision and premises liability. The trial court, sitting as the fact finder, found defendant liable for the injuries plaintiff suffered as a result of all the sexual assaults under both theories and awarded plaintiff damages in the amount of $265,600. This appeal followed.

I.

Defendant first contends that the premises liability statute, § 13-21-115, C.R.S.2003, subsumes plaintiff's negligent supervision claim. However, because this argument was raised for the first time on appeal, we will not consider it. See Pub. Serv. Co. v. Willows Water Dist., 856 P.2d 829 (Colo.1993)(an issue is not properly preserved for appellate review if it is not presented to the trial court).

II.

Defendant next contends he did not owe plaintiff a legal duty to prevent Uzan from sexually assaulting her. We disagree.

Whether a defendant owes a plaintiff a legal duty to act to avoid injury is a question of law to be determined by the court. Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986).

An employer is subject to liability for negligent supervision if the employer knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm. Moses v. Diocese of Colo., 863 P.2d 310 (Colo.1993); Destefano v. Grabrian, 763 P.2d 275 (Colo.1988). Such liability may exist regardless of whether the employee was acting within his or her scope of employment. Biel v. Alcott, 876 P.2d 60 (Colo.App.1993). The plaintiff must establish that the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. Destefano v. Grabrian, supra; Restatement (Second) of Agency § 213 cmt. d (1958).

Here, taking the evidence in the light most favorable to plaintiff, as we must, three of defendant's former employees, all teenaged girls, were either sexually harassed or assaulted by Uzan while working on Continental Cleaners' premises before the assault upon plaintiff. All three quit their employment because of such abuse, filed police reports, and notified defendant of their reasons for leaving. The mother of one of the girls also contacted defendant, complained of Uzan's sexually inappropriate conduct toward the girls, and warned defendant of civil liability if he chose to retain Uzan as an employee.

Defendant conducted a cursory investigation into these allegations. Defendant testified that he requested written statements from two of the girls and confronted Uzan regarding their accusations. Uzan denied them. Defendant's wife, daughter, and niece, who also worked in the business, stated they had never observed inappropriate conduct by Uzan. However, shortly thereafter defendant caught his daughter and niece, both minors, with alcohol supplied by Uzan. Despite defendant's knowledge of Uzan's inappropriate behavior, he retained Uzan, allowing him to work unsupervised with a set of keys to Continental Cleaners' premises.

We agree with the trial court that defendant had notice of Uzan's propensities for illegal behavior, sexual harassment, and assaults on young women and girls, and thus owed a duty to plaintiff. The above evidence demonstrates that defendant knew or should have known that Uzan posed an undue risk of harm to young women and girls while working unsupervised on Continental Cleaners' premises. See Moses v. Diocese of Colo., supra; Destefano v. Grabrian, supra.

Under a general duty analysis, the same result obtains. In determining whether a duty should be recognized, a court must consider many factors, including: (1) the risk involved, (2) the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, (3) the magnitude of the burden of guarding against injury or harm, and (4) the consequences of placing the burden upon the actor. HealthONE v. Rodriguez, 50 P.3d 879 (Colo.2002); Greenberg v. Perkins, 845 P.2d 530 (Colo.1993); Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). These factors, however, are not exhaustive; a court may consider any other relevant factors based on the competing individual and social interests implicated by the facts of the case. Greenberg v. Perkins, supra. Because no single factor controls, 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. Taco Bell, Inc. v. Lannon, supra, 744 P.2d at 46 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 (5th ed.1984)). A court's conclusion that a duty does or does not exist is an expression of the sum total of those considerations of policy that lead the law to say that the plaintiff is or is not entitled to protection. Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987).

Given the facts here, there was a risk that Uzan would sexually assault a young woman or girl on the premises if left unsupervised, resulting in significant physical and emotional injury. The magnitude of the burden imposed and the consequences of placing the burden on defendant are not great. Defendant could have discharged the burden by preventing Uzan from having a key to the premises and from being alone on the business premises without supervision.

A wrongful act may be foreseeable even if a tortfeasor cannot ascertain precisely when or how an incident will occur. Rather, foreseeability includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct. Taco Bell, Inc. v. Lannon, supra. It is not necessary that the tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur, but only that some injury will likely result in some manner as a consequence of the negligent acts. HealthONE v. Rodriguez, supra.

Here, given the previous assaults, the risk was reasonably foreseeable. Further, because of the employment relationship between defendant and Uzan, under which defendant had an undisputed right to control Uzan, defendant's duty encompassed a duty to prevent Uzan from harming plaintiff on the premises. See Restatement (Second) of Torts § 317 (master has a duty to exercise reasonable care to control servant while acting outside the scope of his employment as to prevent servant from intentionally harming others when servant is upon the master's premises, the master has reason to know of his ability to control the servant, and the master knows or should know of the necessity and opportunity to exercise control); cf. Leake v. Cain, 720 P.2d 152 (Colo.1986)(no duty to prevent a third person from harming another, absent a special relationship between the actor and the wrongdoer or between the actor and the victim, citing Restatement (Second) of Torts § 315); see also Restatement (Second) of Torts § 315 cmt. c (the employment relationship is such a special relationship).

Defendant relies on various cases to support his argument that he is not liable for the sexual assault perpetrated by Uzan because there was no foreseeable connection between Uzan's employment duties and the assault. However, those cases are all distinguishable from the facts here.

In Connes v. Molalla Trans. Syst., Inc., 817 P.2d 567 (Colo.App.1991), aff'd, 831 P.2d 1316 (Colo.1992), the employer hired a truck driver after checking his references and driving record. While driving through Colorado, the employee stopped at a motel. Once inside, he sexually assaulted the desk clerk. The clerk asserted a negligent hiring claim against the employer predicated on the employer's failure to check the employee's criminal record. Finding that the employee's conduct was not foreseeable, the court concluded that the employer had no duty to check the employee's criminal record.

Houser v. Smith, 968 S.W.2d 542 (Tex.App.1998), like Connes, involved an employer's liability under a negligent hiring theory arising when the employer failed to investigate his employee's criminal background. There, the employee sexually assaulted the plaintiff at the employer's work premises after business hours. The court held that the assault was not foreseeable and therefore the employer did not owe the plaintiff a duty, even had the employer discovered the employee's prior forgery convictions.

Unlike the employers in Connes and Houser, both of whom did not know or have reason to know of their employees' criminal pasts, defendant knew or had reason to know that Uzan had...