In the case of Rideout v. City of Bellingham, 2019 Wash. App. LEXIS 2652 (10/21/2019), the issue before the state appeals court was whether the defendant, City of Bellingham, Washington, was responsible for an employee using his cellphone to videotape female employees in an aquatic center changing room.
Facts of the Case
David Frick was employed by the City of Bellingham (City) as a recreation instructor at the Arne Hanna Aquatic Center (Aquatic Center). Frick had worked at the Aquatic Center from 1996 to 2016. His duties included lifeguarding, leading water aerobics classes and swimming lessons. Frick also was tasked with opening the pool in the morning, verifying lifeguard staff’s timesheets and purchasing first aid and safety equipment.
Frick was arrested on suspicion of possession of child pornography on August 4, 2016. During a police interview subsequent to Frick’s arrest, he admitted that he had been secretly video recording his coworkers while changing into and out of their swimsuits at work. He captured his recordings by hiding a cellphone with a camera in a locked locker in the staff changing room. Bellingham police were able to identify the victims in these recordings when they seized Frick’s computer devices and phone.
It was established that plaintiff Michaiah Rideout was one of the victims of Frick’s secret recordings at work. The City was notified of Frick’s conduct and these recordings on August 5, 2016, one day after his arrest. Frick’s superiors and coworkers were shocked by the news. During his 20-year employment at the Aquatic Center, no one had ever complained about inappropriate behavior by Frick. The only complaint recalled by the Aquatic Center manager was when a patron indicated that Frick told jokes during water aerobics class. Only two fellow employees recalled seeing Frick with a cellphone at work.
Plaintiffs Michaiah Rideout and Joey Rideout (collectively the Rideouts) sued the City in April 2017, alleging the City was vicariously liable for Frick’s conduct, the City had created a hostile work environment by failing to protect employees from Frick and that the City breached a duty to inspect for hazardous conditions.
In December 2017, the City moved for summary judgment. In so doing, the City denied any responsibility; i.e., “vicarious liability” for Frick’s conduct since it was “outside the scope of his employment.” The City also denied that it had created a hostile work environment. The trial court agreed and granted the City’s motion for summary judgment dismissing all claims against the City. (In a separate hearing, the Rideouts later were granted summary judgment on their claims against Frick.) The Rideouts appealed the City’s summary judgment dismissing their claims.
Foreseeable Employee Misconduct?
On appeal, the City reiterated its motion for summary judgment argument that “there is no evidence showing that the City authorized, knew, or should have known of Frick’s alleged harassing behavior against his coworkers or that the City failed to take prompt and adequate remedial action.” Further, the City claimed there was no evidence of “foreseeability,” which was “one of the essential elements of a claim for direct liability for an employer.” In so doing, the City noted that the Rideouts themselves had acknowledged on the record the lack of foreseeability. Specifically, the Rideouts had said, “absolutely not,” when asked if there were “any signs that Frick was capable of such behavior.”
In reviewing the trial court’s granting summary judgment to the City, the appeals court would determine whether the pretrial record established there was “no genuine issue as to any material fact,” which needed to be resolved at a trial. Within the context of a motion for summary judgment, a “material fact” would be “one upon which the outcome of the litigation depends.” In the absence of any “genuine issue of any material fact” in the pretrial record, the appeals court noted that the City was “entitled to a judgment as a matter of law.”
On appeal, the Rideouts did not challenge the City’s denial of vicarious liability; i.e., agency liability for the negligence of its employees committed within the scope of their employment. Instead, the Rideouts claimed the pretrial record still contained unresolved “questions of fact” as to whether the City had “direct liability” for negligence under the circumstances of this case.
According to the appeals court: “Both the vicarious liability of the City and any independent direct negligence tort claim of a hostile work environment hinge on whether Frick’s actions were foreseeable.”
In reviewing the pretrial record, the appeals court found the Rideouts had failed to “advance any genuine issue of material fact about the foreseeability of Frick’s conduct.” Absent any evidence of foreseeability, the appeals court acknowledged, Rideouts’ claims of liability against the City would fail. That being said, the appeals court did note that the Rideouts had raised “a general concern of video voyeurism within public pools.” However, in the opinion of the appeals court, such general concerns were “unresponsive to the City’s foreseeability arguments,” denying any responsibility or liability for Frick’s actions.
Moreover, the appeals court found the City had a policy in place in the year when Frick’s actions were discovered, which prohibited recording devices at Arne Hanna Aquatic Center. In so doing, the appeals court found the City had reasonably addressed the Rideouts’ “generalized concerns within the pool industry” regarding “video voyeurism.” Accordingly, in the opinion of the appeals court, the City should not “face liability for Frick’s violation of that policy.”
In determining whether the City should be legally responsible and potentially liable for the actions of Frick, the appeals court cited the traditional master/servant rule that is generally applied to determine employer liability for employee misconduct:
Where the servant’s intentionally tortious [i.e., negligent] or criminal acts are not performed in furtherance of the master’s business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant’s wrongful acts or the means for carrying them out.
As noted by the court: “where an employee commits an assault in order to effect a purpose of his or her own, the employer is not liable.” Moreover, the appeals court acknowledged that “sexual misconduct” in the workplace by an employee would not constitute acts within the furtherance of the employer’s business:
Washington case law is clear that unless an employee’s sexual misconduct was foreseeable, the employer is generally not liable. For an employer to be vicariously liable for an employee’s misconduct, the threshold questions are whether that employee was acting in the furtherance of the employer’s business and within the scope of employment.... [W]here an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment.
In this particular instance, the court acknowledged: “Frick’s conduct of attaching a cellphone with a camera inside a locker to record his coworkers changing is an undisputed fact.” Moreover, the court noted: “This act was clearly unauthorized by Aquatic Center management and undertaken for Frick’s own sexual gratification so should be understood as squarely outside his scope of employment.” Since Frick had “engaged in this conduct for personal gratification unrelated to his employer,” the appeals court concluded, “the City cannot be vicariously liable.” Accordingly, the appeals court held: “The trial court’s ruling on summary judgment in favor of the City on the vicarious liability claims was proper.”
In contrast to vicarious liability wherein an employer may be legally responsible for the negligent acts of an employee committed within the scope of employment, the appeals court noted: “An employer can be directly liable for conduct that is outside of the scope of employment if the acts of the employee were foreseeable.” For such “direct liability,” the court further noted the appropriate legal standard would be “whether the employer had prior knowledge of the dangerous tendencies of the employee.”
Under this legal standard for determining direct liability for an employer’s negligence, the appeals court agreed with the City’s assertion that “all of the Rideouts’ direct negligence claims turn on the foreseeability of Frick’s actions.” Based upon the pretrial record before the trial court, the appeals court found: “The Rideouts failed to allege any facts to establish that Frick’s conduct was foreseeable, therefore subjecting the City to a direct liability claim based upon the City’s failure to protect its employees or to inspect for hazardous conditions”:
The Rideouts did not offer evidence that the Aquatic Center management knew or should have known of Frick’s dangerous propensity. The only known issue as to Frick’s conduct during his employment was a single patron complaining that he would “test” jokes during water aerobics class. There is nothing in the record to suggest the jokes made in class were sexual in nature.
According to the appeals court, there was, however, undisputed evidence introduced that “the same year that Frick’s conduct was discovered, the Aquatic Center had an issue with some female staff members’ underwear being stolen from their lockers and some having strange suggestive messages and fixtures attached to them.” In addition, some other staff members reported similar findings as to their underwear left inside their lockers. The appeals court, however, found the City had “investigated this incident and determined a janitorial staff member from another department was responsible.”
To establish that Frick’s acts should have been foreseeable to the City, the appeals court noted that the Rideouts also had relied on the fact that “Frick placed a lock on his staff locker to accomplish his surreptitious recordings” and “Frick was the only employee to use a lock.” In the opinion of the appeals court, without more evidence, Frick’s mere use of a lock on a locker was not indicative of his making “surreptitious recording.” On the contrary, the court found Frick’s “utilization of a lock on a locker is merely evidence of seeking to protect the contents from theft or other disturbance, particularly in light of the issues with the janitor removing or affixing messages to undergarments.”
In addition to Frick’s use of a lock for his locker, the Rideouts claimed “the City should have known of Frick’s dangerousness,” because statements from two Aquatic Center employees indicated they had seen Frick with a cellphone at work. In the opinion of the appeals court, Frick’s cellphone did not “establish any dispute of material fact regarding the foreseeability of Frick’s actions.” As characterized by the appeals court, mere evidence of an individual “having a cellphone in one’s possession at work is not evidence of that person’s intent to illegally record their coworkers.” Further, equating simple possession of a cellphone in the workplace with a hostile work environment would, in the opinion of the court, “result in untenable consequences for employers across a variety of industries and professional fields.”
Voyeurism Risk at Pools
On appeal, the Rideouts further argued: “the exhibits they submitted about the general issue of video voyeurism at swimming pools raised an issue of material fact as to whether the City was aware or should have been aware of the possibility that Frick would engage in such conduct.” These exhibits included “a number of newspaper articles from across the country about incidents of video voyeurism.” In addition, the Rideouts offered the testimony of a purported expert that discussed the risk of voyeurism at pools. The appeals court, however, rejected the notion that the City knew or should have known about Frick’s misconduct based upon such evidence, suggesting general concerns about video voyeurism at swimming pools.
According to the appeals court: “General concern within an industry does not establish the particularized dangerousness of a specific employee.” On the contrary, for an employer to be liable under a claim of negligent supervision, the appeals court would require “the employer have knowledge of the dangerous tendencies of that particular employee.” In this particular instance, the appeals court found: “The purported evidence of video voyeurism at pools at best raises an issue of a general danger within the industry.” As characterized by the appeals court, the exhibits and expert testimony offered by the Rideouts “would only support general knowledge of the broad concern of pool voyeurism.” Such general knowledge of video voyeurism imputed to the City would, therefore, be insufficient to show the employer City in this case, “knows or should know of the necessity and opportunity for exercising such control” over Frick and his cellphone use to have prevented video voyeurism.
General Criminality Danger
Unlike negligent supervision liability, which would require “the employer have knowledge of the dangerous tendencies of that particular employee,” the appeals court noted that an employer could still be liable for negligent protection against a “general danger” of criminal misconduct. Specifically, the court found: An employer owes a duty to an employee to make “reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee.”
In this particular instance, however, the appeals court found no breach of any duty to protect Ms. Rideout against the crime of video voyeurism because there was no evidence that “the City should have foreseen Frick’s conduct.”
Where there is no evidence that the defendant knew of the dangerous propensities of the individual responsible for the crime and there is no history of such crimes on the premises, courts have held the criminal conduct unforeseeable as a matter of law.
In this particular instance, the appeals court found Frick’s criminal conduct was indeed unforeseeable: “All employees interviewed pursuant to this case were shocked when they learned that Frick had engaged in this tortious conduct and no one foresaw that he was possible of such, including Rideout herself.” Moreover, the appeals court reiterated its finding that Frick’s use of a lock on his locker and the fact that “two employees had seen him at work with a phone are insufficient to establish a genuine issue of material fact as to the foreseeability of Frick’s conduct.” Similarly, the appeals court underscored its rejection of the opinion of an expert witness and newspaper articles offered by the Rideouts on the general issue of video voyeurism. In the opinion of the appeals court, such pretrial evidence offered by the Rideouts failed to show not only “the particular dangerousness of Frick, but also as to a generally foreseeable danger, which would have been essential in order to establish a duty for the City.”
As a result, based upon a review of the pretrial record, the appeals court held “the trial court did not err in granting summary judgment in favor of the City” and dismissing the Rideouts’ lawsuit. The appeals court, therefore, affirmed the summary judgment of the trial court in favor of the City.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).