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Fight Off the Clock
by Ron Davis

An Ohio shopping center tenant can be thankful that three of his employees were not “on the clock” when they assaulted a group of four young customers in the center’s parking lot. That’s because the customers sued the tenant as a result of the assault, charging negligent hiring and supervision.

The tenant operates a retail store at the Cleveland-area shopping center and had just closed for the evening when the assault occurred. One of the victims had emerged from the store at closing and was returning to a car where the other three youths, all cousins of his, were waiting. Before he could reach the car, however, the tenant’s employees, who knew the four as classmates at a local high school, confronted him with baseball bats.

A witness said the two parties yelled at each other, the cousins in the car then jumped out, and a fight began. The bat-wielding trio apparently chased the other four youths to their car, and they drove off.

In their lawsuit against the shopping center tenant, the youths blamed him for the injuries they suffered in the fight. But when questioned about the incident, one of them stated that the employees were not working at the time of the fight. He added, “Actually they were sitting down. One guy was sitting down smoking a cigarette, and another guy was standing there with his hands in his pocket.”

Ohio law requires proof in a negligent-hiring lawsuit that an employee is “on the clock” when he commits a criminal act. Otherwise, his employer cannot be held liable. Moreover, an employer is negligent only if he knows, or should have known, that his employee has a tendency to commit violence and such employment might create a situation where the violence would harm someone.

In ruling in favor of the tenant employer, an Ohio court explained, “We find that the employees were not ‘on the clock’ at the time this incident occurred. We also find that there is no evidence that the employees had a prior history of criminal behavior or that the employer knew or should have known of any such prior history.” (Saleh v. Marc Glassman, Inc., 2005 WL 3081507 [Ohio App. 8 Dist.])

Decision: November 2005
Published: December 2005



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