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No. 131358
| Lisa Brown, |
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Gregory T. Young |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Wayne - Thomas, E.) |
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| Samuel Whittar Steel, Inc., |
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Christine D. Oldani |
Defendant-Appellant, |
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| Michael Brown, Lumbermans Mutual Casualty |
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| Insurance Company, and Harlan Gardner, |
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| Defendants.. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief in Opposition to Leave to Appeal>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Reply Brief>>
Defendant-Appellant's Supplemental Brief>>
Background
Lisa Brown worked for Burns International Security as a security guard; she was assigned to work the night-shift at Samuel Whittar Steel, Inc. Her duties required her to make nightly security rounds through the plant. One night, when making her usual round of the facility, the plaintiff met up with Michael Brown (no relation to Lisa Brown), a Whittar employee. Brown grabbed the plaintiff and pushed her into a women’s restroom, where he raped her. The plaintiff immediately contacted the police, and Brown was arrested; he later pled no contest to attempted third-degree criminal sexual conduct. The plaintiff filed a civil lawsuit against both Brown and Whittar. She argued that Whittar was vicariously liable for Brown’s acts under the theory of respondeat superior, because Brown was acting within the scope of his employment when he raped her. She also claimed that Whittar was negligent in continuing to employ Brown because it knew or should have known of his violent propensities. The plaintiff based this second claim on the fact that she had complained to a Whittar plant manager, on more than one occasion, about graphic sexual comments that Brown had made to her. Brown had no prior criminal record and no history of criminal behavior. Whittar filed a motion, asking the trial court to dismiss both of the plaintiff’s claims. The trial court granted the motion, finding that Whittar was not liable for the unforeseen criminal acts of Brown. The plaintiff appealed to the Court of Appeals, which reversed in a published opinion. The Court of Appeals held that the plaintiff had abandoned her claim of respondeat superior. But the court held that the graphic and aggressive nature of Brown’s previous statements to the plaintiff, which had been brought to the attention of a Whittar supervisor, were sufficient to create a question of fact for the jury whether Whittar should have been aware of Brown’s violent propensity to commit an assault. Whittar seeks leave to appeal.
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