Friday, May 14, 2004
C.A. Says Security Firm Not Liable for Guard’s Assault on Woman
By a MetNews Staff Writer
A security firm that employed a guard convicted of assaulting a female janitor working at the office building to which the guard was assigned was not liable for the employee’s conduct and was not negligent in hiring and retaining him, the First District Court of Appeal has ruled.
In an April 14 opinion, certified Wednesday for publication, Presiding Justice Barbara Jones of Div. Five said Guardsmark LLC had no reason to foresee that Toufik Kadah might commit an assault during a job assignment. The panel affirmed a summary judgment in favor of the company.
Evelia Plancarte sued the Guardsmark and the security guard, claiming that Kadah—who had worked for the company off and on for a little less than three years, but was on his first day at the particular site—attacked her and chased her through the building, causing her to fall.
Plancarte alleged in her complaint that while she was cleaning a men’s bathroom in the building, Kadah came in, blocked her from leaving, grabbed her breast with one hand while squeezing her face with the other, and trapped her for 10 minutes while trying to kiss her.
Plancarte claimed Kadah violently pushed her into a wall, and that she was able to escape only because someone else entered the bathroom, before Kadah gave chase.
Kadah told his supervisor and a private investigator hired by Guardsmark that he went into the bathroom to wash his hands, which may have startled the janitor. He said he told Plancarte, who does not speak English, not to worry, then put his hand on her shoulder to calm her and said he was leaving.
After he helped another woman who worked in the building and needed assistance with a key, Kadah said, he went back to the bathroom to further calm Plancarte but saw her running down the hall.
Kadah pled no contest to misdemeanor assault. In opposition to Guardsmark’s summary judgment motion, the plaintiff claimed that the company should not have hired, or should not have retained, Kadah because of indications he was untrustworthy.
The opposition cited evidence that Kadah had once falsely claimed to be a U.S. citizen on a job application and had given conflicting family information on two applications; that he had two social security numbers; that he sought unemployment compensation benefits after leaving Guardsmark the first time, even though his departure was voluntary; and that he gave questionable responses on a psychological test.
Alameda Superior Court Judge Kenneth Mark Burr granted the company’s motion, leaving Kadah as the sole defendant.
Jones, writing for the Court of Appeal, said the trial judge was correct.
The doctrine of respondeat superior does not apply, Jones wrote, because “nothing in the record indicates that the motivating emotions for Kadah’s sexual assault on Plancarte were causally attributable to his employment as a security guard.”
The security guard was not, she said, “akin to a physician or therapist who becomes sexually involved with a patient after mishandling the emotions predictably created by the therapeutic relationship.”
There is nothing about the job of a security guard, she added, which makes it foreseeable that one will commit a sexual assault. Whatever motivation Kadah might have had for assaulting Plancarte, she said, it had nothing to do with the protection of the building or the occupants.
Jones distinguished Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, which applied respondeat superior to the case of a police officer who raped a detained motorist based on the court’s conclusion that—given “the unique authority vested in police officers”—the attack was a generally foreseeable consequence of the officer’s position.
The same rule cannot be applied to private security guards, Jones said, because they lack the “sweeping coercive authority” of the police.
The presiding justice went on to say that there was no evidence that would create a triable issue of negligence with respect to Kadah’s hiring, retention, and supervision.
She noted that Guardsmark conducted extensive background checks, that Kadah had acknowledged in writing that the company’s code of ethics barred him from engaging in offensive conduct of a physical or sexual nature, that Kadah had not been arrested or institutionalized prior to the incident, and that the company had verified his eligibility to register with the state as a security guard.
“Most importantly,” she wrote, he had never been the subject of a complaint to the company alleging improper behavior.
Jones rejected the contention that the plaintiff could make out a case of negligence based on evidence that Kadah was dishonest, or on the basis of psychological testing.
Kadah’s alleged dishonesty, Jones reasoned, had nothing to do with the allegation of sexual assault. And the testimony of plaintiff’s psychological expert, who claimed that Kadah’s responses to the Minnesota Multiphasic Personality Inventory given by the company to all of its guards indicated enough evidence of pathology to at least require retesting, was too speculative to be the basis for a claim, the presiding justice concluded.
The case is Plancarte v. Guardsmark, LLC, 04 S.O.S. 2414.
Copyright 2004, Metropolitan News Company