The recent case involved Jeremiah Citro, an employee of General Electric ("GE"). Citro was sent home from work on a Friday by GE's nurse because he appeared to be disoriented and confused. He was instructed to not return to work until the following Monday. Ignoring those instructions, Citro arrived at work the following day, Saturday. His supervisor observed that Citro slurred his speech and he appeared disoriented. The supervisor instructed Citro to leave work and not return until Monday. Citro initially refused to leave, but he eventually departed the premises. Undaunted, Citro returned to GE a second time that Saturday. This time, two police officers interrogated him in GE's parking lot. The officers administered field sobriety tests, determined that he could safely operate a vehicle, and instructed him to not return to GE until Monday. Two hours later, Citro, who was off-duty, was involved in a car accident in which his passenger, Sarah Everitt, was injured.
Everitt sued GE, among others, alleging that GE had a duty to prevent Citro from harming her. To prove that GE had such a duty, Everitt pointed to an internal GE policy regarding the handling of impaired employees. That policy stated expressly that the impaired employee should not be permitted to drive "to protect the employee and others and to avoid being held liable for any accidents that occur." The policy also required that GE arrange for alternative transportation if an employee failed an alcohol or drug test. Everitt alleged that had GE followed its policy, Citro would not have operated the vehicle and she would not have been injured.
As a general matter, employers can be liable for harms caused by their employees in the performance of the employees' duties. This is known as vicarious liability. In Everitt's case, Citro was off-duty at the time of the accident, and because GE exerted no control over Citro (other than perhaps to order him not to return), GE could not be vicariously liable for his conduct. Everitt therefore had to prove that GE was directly negligent, which required that she prove GE had a duty to prevent this type of harm from occurring to her. To bolster a claim of negligence, Plaintiffs frequently seek discovery of a corporate defendant's internal policies in an attempt to use those policies as the standard by which the corporation's conduct should be judged. It is often a useful technique to use the company's words against it and make the company look hypocritical when a harm ensues. Everitt attempted to do the same with GE's policies.
Unfortunately for Everitt, the Supreme Court determined that GE's policy to prevent impaired employees from operating a vehicle did not create a duty on GE to protect the general public from Citro. In the Court's words, "the mere existence of this policy did not create a duty of care to the plaintiff."Even though GE directed its supervisors to not allow an impaired employee to drive, GE did not bear responsibility for harm caused by the impaired employee.
The Supreme Court reviewed cases from other states to buttress its opinion. The Court highlighted in particular decisions from other states in which courts have held that internal policies prohibiting the consumption of alcohol on the job do not create a duty on the employer to prevent harm to the general public when an inebriated employee leaves the premises.
The Supreme Court was also persuaded by the overall benefit to the general public to having policies such as GE's. According to the Court, the public benefits when employers proactively attempt to prevent impaired employees from driving. Imposing liability on GE in this instance would dissuade employers from having such policies for fear that these policies would be used against them in court. The Court wrote that in the macro, it is better to encourage employers to have such policies rather than "abandon all efforts which could benefit such employee in order to avoid future liability." The irony of the Court's opinion is that GE expressly stated in its policy its desire to protect the public. GE stated that it sought to prevent impaired employees from driving "to protect the employee and others and to avoid being held liable for any accidents that occur." In prior decisions, the Supreme Court has held that one can be liable where one voluntarily assumes a duty to prevent harm, but fails to exercise reasonable care in fulfilling that duty. If the landlord does not use reasonable care to ensure that the cameras are operational or if the security guard falls asleep rather than watches the monitors, the landlord can be liable to its tenants for criminal acts by intruders. Despite this established rule of law and despite GE's explicit desire to prevent harm to others, the Supreme Court held that GE had not undertaken such a duty in this instance. Because GE had no duty to prevent Citro from harming Everitt, Everitt could not maintain her claim against GE.
Before employers get too good of a feeling from this decision, it is important to realize that GE took several steps pursuant to its policy, which may have swayed the Court. The result might have been different if Citro was a delivery driver and GE sent him out to make deliveries when he was acting erratically. In this case, though, Citro did not fail any drug tests and the two officers who interrogated Citro hours before his accident concluded that he was fit to drive. Although there is no express finding that Citro was capable of driving safely, these facts may have influenced the decision. It is important to note, however, that whether Citro was impaired and whether GE complied with its policy ordinarily would have been decided by a jury. The Supreme Court determined that resolving these facts was unnecessary because regardless of whether Citro was impaired, GE could not be hoisted by its own petard.
The Everitt opinion applies only to a policy prohibiting impaired employees from driving. However, the decision raises questions about other types of HR policies and whether they create a duty on a company to prevent harm to a third party. For example, many companies have adopted a policy prohibiting an employee from using the computer systems to transmit harassing or profane material. Assume that an employee uses the company's resources to send harassing emails to a former girlfriend or boyfriend. >The Everitt decision suggests that the company's computer use policy is irrelevant to determining whether the company should be liable. Despite its promises to monitor computer use and prevent harassment, the company apparently has no duty to the girlfriend or boyfriend. The logic of Everitt may also extend to other common policies such as those prohibiting violence in the workplace, progressive disciplinary policies, and perhaps even quality control and safety protocols.
On the whole, the Everitt decision appears to be beneficial for employers as it could support some expanded defenses to negligence claims brought by members of the general public. Future decisions will set the boundaries for this possible defense.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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