 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Steppe v. Kmart Stores11/18/1999
s prior to his assault on Carolyn Steppe on the basis of the testimony of Jamie Elswick. Ms. Elswick testified that Workman often tapped her and other employees on the butt when he walked past them in an area near the front of the store. However, on cross-examination Ms. Elswick conceded that she was unaware of any Kmart manager who saw Workman touch her. She did not know whether any supervisor saw him touch the other employees. Ms. Elswick never told anyone that Workman was harassing other employees and she did not know whether any other employee complained. The first complaint which she made to Kmart was on June 21, 1995 and after the complaint she had no further problems with Workman at Kmart. Thus, even when we construe the evidence most strongly in favor of appellant, as we must do, we find the testimony of Ms. Elswick to be insufficient to demonstrate that Kmart either knew or should have known of Workman's criminal or tortious propensities and, therefore, foreseeable.
Further, appellant implies that Kmart was negligent in its hiring of James Workman because it failed to investigate his criminal background which she alleges would have revealed a prior juvenile adjudication for assault. However, the evidence presented demonstrated that Workman was referred for employment by his mother, a long-term employee and successful Kmart employee; he denied that he had any felony convictions in his job application and he denied that he had been convicted of any offense other than a minor traffic violation in his application for fidelity bond. Kmart was under no duty to conduct a criminal background check. Kuhn v. Youlten (1997), 118 Ohio App.3d 168. Even so, no evidence was presented that a background check would have revealed that Workman had a propensity for sexual harassment or sexual assault, thus, potentially putting Kmart on notice of such propensity.
Therefore, with the evidence presented, we find that appellant failed to establish Kmart knew or should have known of James Workman's criminal or tortious propensities. Thus, when we view the evidence in a light most favorable to appellant, we find that a reasonable person could only reach one conclusion on the evidence presented and that conclusion is adverse to appellant here. In this case the totality of the circumstances are not somewhat overwhelming so as to impose liability upon Kmart. Because we find that sufficient evidence was not presented at trial to sustain the claim of negligent hiring, supervision and retention of James Workman brought by appellant as to Kmart, we find that the trial court erred in failing to direct the verdict in favor of Kmart on appellant's claim of negligent hiring supervision and retention of James Workman and erred in failing to enter a judgment notwithstanding the verdict on his claim. Cross-appellant Kmart's first and second assignments of error are well-taken.
In consideration of our determination in appellant's first assigned error and cross-appellant's second assigned error, we find appellant Carolyn Steppe's second assignment of error and cross- appellant Kmart's third, fourth, fifth and sixth assignments of error to be moot. See App.R. 12(A)(1)(c).
Cause reversed and judgment entered for cross-appellant Kmart.
This cause is reversed and judgment entered for cross-apellant Kmart.
It is, therefore, ordered that cross-appellant Kmart recover from appellant Carolyn M. Steppe its costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY
Page 1 2 3 4 5 6 7 8 9 Ohio Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|