In Illinois, as a general rule, one person has no duty to prevent the criminal acts of another. There are exceptions however, such as an employer’s duty to act reasonably when hiring, supervising, and retaining its employees. An employer can be liable if it knew, or should have known, an employee was unfit for the job to the point that the employee creates a danger of harm to third persons, causing injury. The 7th Circuit Appellate Court recently probed this sort of liability in the case Anicich v. Home Depot U.S.A. Inc. This area of law, as exemplified by the Anicich, case is especially relevant today given the recent swell of reports regarding individuals using their positions in the workplace as power to sexually harass subordinates.
The facts of the Anicich case are unfortunate and involve a Home Depot regional manager, who repeatedly berated and made sexual advances towards female subordinates. Multiple employees complained about the manager’s actions. The matter that brought about this litigation involved Cooper, the manager, and one of his subordinates, Alisha Bromfield. Cooper referred to Bromfield as his girlfriend, swore and yelled at her, monitored her outside of work, and required her to share a hotel room with him on business trips. In 2012, Bromfield, under threat of termination by Cooper, accompanied Cooper to his sister’s wedding, where afterwards Cooper raped and murdered her. Bromfield’s mother brought negligent hiring, supervision and retention claims against Home Depot.
To prevail on the claims, the plaintiff was required to prove the following: (1) Home Depot knew or should have known that Cooper had a particular unfitness for his position as to create a danger of harm to third persons; (2) the particular unfitness was known or should have been known at the time of the hiring, retention or failure to supervise; and (3) the particular unfitness in particular caused Bromfield’s injuries.
Home Depot made three failing arguments as to why the plaintiff did not state a cause of action, but one generated a significant response from the court. Home Depot argued it was not liable for Cooper’s actions because the murder did not occur on Home Depot’s premises or using its property. Significantly, the court held that Cooper used something Home Depot provided to him when he murdered Bromfield: his supervisory authority. The court noted Cooper’s threats to fire Bromfield were only possible because Home Depot made him Bromfield’s supervisor. Therefore, the court held, employers can be liable for negligent hiring, supervision, or retention when, among other requisite elements, an employee misuses supervisory authority.