Foster v. The Loft, Inc.

Massachusetts Appeals Court · Torts

TortsNegligent retentionEmployer liabilitytortsnegligent retentionnegligent hiringemployer dutypublic invitees

Facts

Loft operated a large multi-bar nightclub with dancing, a capacity of about five hundred people, prior disturbances, and substantial security personnel to control disorder. Loft retained Rida as a bartender, whose duties regularly brought him into contact with customers and included handling drink orders and customer complaints. Before the incident, Loft's comanager knew Rida had a criminal record and had been warned by a police officer employed part-time by Loft to check on employees, particularly bartenders with past problems, but management made no inquiry into Rida's background, references, or application. After a customer complained about a drink, Rida responded abusively, jumped over the bar, and while another employee restrained the plaintiff, Rida punched the plaintiff and seriously injured him.

Issue

Whether the evidence was sufficient to permit a jury to find that Loft negligently retained Rida as a bartender, so that the trial judge properly denied Loft's motion for judgment notwithstanding the verdict. More specifically, the question was whether Loft's knowledge that Rida had a criminal record, together with the surrounding circumstances of his job and workplace, could support a finding of negligence and proximate cause.

Rule

On a motion for judgment notwithstanding the verdict, the court applies the same standard as for a directed verdict: whether anywhere in the evidence, from whatever source derived, any combination of circumstances could support a reasonable inference for the plaintiff, viewing the evidence in the light most favorable to the plaintiff. Negligent retention occurs when an employer whose employees deal with the public knows or should know that an employee is unfit by habits, temperament, or nature, and fails to take further action such as investigation, discharge, or reassignment. Knowledge that an employee has a criminal record alone does not establish negligence as a matter of law; liability depends on the nature of the record and all the circumstances, including foreseeability of the resulting harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Harbor Room, LLC operates a crowded music bar in Providence, Rhode Island, with frequent late-night disputes and several security guards assigned to keep order. Management knows that its floor manager, Victor Nunez, has a prior conviction for aggravated assault, yet leaves him in charge of resolving patron complaints and makes no inquiry into the details of his background; after an argument over a tab, Victor punches a customer.

If the customer sues Harbor Room for negligent retention, which is the strongest argument that the claim should reach the jury?

Explanation. Negligent retention may be found when an employer knows or should know during employment that an employee is unfit and fails to take further action such as investigation, discharge, or reassignment. The majority emphasized that mere knowledge of a criminal record is not enough by itself; liability depends on the nature of the record and the surrounding circumstances, including a volatile environment and duties involving patron complaints. Those facts permit a jury finding of foreseeable harm. (Derived from Foster v. The Loft, Inc. (n.d.).)