§5:45 Action for Assault With Respondeat Superior Allegations Against Principal
SAMPLE ALLEGATIONS
1. Defendant SMITH, as alleged herein, engaged in conduct that was intended by him to cause apprehension in plaintiff JOE ROE of an imminent harmful and/or offensive conduct.
2. Defendant SMITH engaged in conduct that was substantially certain to cause apprehension in plaintiff JOE ROE of an imminent harmful and/or offensive contact.
3. Said apprehension was intended to cause harm and injury to plaintiff JOE ROE.
4. Plaintiff JOE ROE did, in fact, suffer a reasonable apprehension of imminent harmful and/or offensive contact as a direct result of SMITH’S conduct.
5. In doing the acts alleged herein, defendant SMITH used the power and authority conferred upon him by DEFENDANT SCHOOL as volunteer coach and school chaperone to get access to minors such as JOE ROE for his deviant purposes. It is predictable and foreseeable, given DEFENDANT SCHOOL’S negligent supervision of SMITH, and of JOE ROE and other students, that someone in SMITH’s position would abuse the power and authority defendants conferred upon him by engaging in assaultive conduct. As such, SMITH’s conduct is incident to his agency with defendants, so as to be fairly attributable to DEFENDANT.
6. As a direct and proximate result of defendants’ conduct as hereinabove alleged, plaintiff was injured in his strength, health, and activity, sustaining shock and injury to his nervous system, all of which have caused and continue to cause plaintiff great mental pain, embarrassment, humiliation, distress, anguish and suffering, all to her damage in an amount in excess of the minimum subject matter jurisdiction of this Court and according to proof.
7. As a further direct and legal result of the foregoing, and of the injuries caused thereby to plaintiff, as aforesaid, plaintiff was required to and did employ physicians, therapists, hospitals, and various other health care practitioners to examine, care for and treat them, and did thereby necessarily incur medical and incidental expense. Plaintiff is informed and believes, and thereon alleges, that he will continue to incur such expenses for an indefinite period of time in the future. The exact amount of such medical and incidental expenses is unknown to plaintiff at this time, but which will be proved at trial.
8. As a further direct and legal result of the foregoing, and of the injuries caused thereby to plaintiff, as aforesaid, plaintiff has sustained injury and damage to his earnings and earning capacity, and plaintiff is informed and believes, and thereon alleges, that he will continue to sustain such damage in the future, all to his further damage in an amount presently unknown, but which will be proved at trial.
COMMENT
Paragraphs 1 through 5 and 7 and 8 represent a fairly standard pleading for recovery of damages resulting from an assault.
Paragraph 6 represents an effort to hold the principal (school) responsible under the doctrine of respondeat superior for the intentional acts of its agent (volunteer coach/school chaperone). The emphasis in paragraph 6 is on foreseeability because foreseeability is frequently a factor in establishing respondeat superior liability for acts of an agent.
AUTHORITIES
California: Lisa M. v. Henry Mayo Newhall Memorial Hosp., 12 Cal. 4th 291, 907 P.2d 358, 48 Cal. Rptr. 2d 510 (1995). “A tortious occurrence by an employee must be a generally foreseeable consequence of the business activity. In this usage foreseeability merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. The foreseeability test is useful because it reflects the central justification for respondeat superior liability. That is, that losses fairly attributable to an enterprise, those, which foreseeably result from the conduct of the enterprise, should be allocated to the enterprise as a cost of doing business.” Plaintiff patient brought an action against the hospital after a technician employed by the hospital sexually molested her; the court held defendant could not have been liable for the acts of its employee because there was no causal nexus between his job and his conduct.
Florida: Watson v. Hialeah, 552 So.2d 1146 (Fla. 1989). “An employer is only liable to an injured plaintiff for negligent retention when the employer has a legal duty, arising out of the relationship between the employment in question and the particular plaintiff, owed to a plaintiff who is within the zone of foreseeable risks created by the employment. Put differently, not only must the employer owe a duty to the plaintiff; the breach of that duty must be the proximate cause of the plaintiff’s harm.” Police officers had murdered someone and the estate attempted to sue the city; the court held that the city was not liable because the murder was not foreseeable.
New York: Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979). An employer need not foresee the precise act committed by the employee; the employee’s act only has to be the general type of conduct that could have been reasonably expected.
Texas: Golden Spread Council, Inc. #562 of the BSA v. Akins, 926 S.W.2d 287 (Tex. 1996). Defendant Boy Scouts did not have a legal duty to screen an adult volunteer about whom it had no knowledge and or control over; the actions of the scoutmaster were not foreseeable to defendant Boy Scouts.