Respondeat superior; Assault & battery; Hamed v Wayne Cnty; Negligent hiring, retention, & supervision; Brown v Brown

The court concluded the trial court erred by denying defendants-Jagu and Patel’s’ summary disposition motion because (1) “plaintiffs failed to establish a genuine issue of material fact” as to the assault-and-battery claim, and (2) their claims of negligent hiring, negligent retention, and negligent supervision also failed. Thus, it reversed and remanded for entry of an order granting Jagu and Patel summary disposition. This case stemmed from two incidents of sexual assault by Jagu’s employee, defendant-Babu-Rao, against plaintiffs-Cummings and Turrentine at a hotel. The central issue was whether Patel (Jagu’s owner) “knew or should have known, before the sexual assault of Turrentine, that Babu-Rao committed similar conduct in the past and had the propensity to act in accordance with assaultive conduct.” Defendants claimed “that Patel lacked any such knowledge, the sexual assault of Turrentine by Babu-Rao was not foreseeable, and no liability should attach to defendants for” Babu-Rao’s actions. The court found that they could not “be vicariously liable for the assault and battery against Turrentine because the evidence fails to establish a genuine issue of material fact as to whether Patel was aware of Babu-Rao’s assault of Cummings beforehand. Moreover, to the extent that plaintiffs rely on [witness-J’s] testimony indicating that Patel knew that Babu-Rao had committed improper sexual advances about 15 years beforehand at another hotel, the record does not indicate when Patel became aware of that.” Thus, J’s testimony failed “to establish a genuine issue of material fact for vicarious liability regarding the assault against Turrentine.” Defendants were entitled to summary disposition on the assault-and-battery claims. As to the claims of negligent hiring, retention, and supervision, they contended “the facts in this case are similar to those in Brown, where our Supreme Court held the defendant employer was not liable for its employee’s rape because the employee ‘did not commit prior acts that would have put his employer on notice of [the employee’s] propensity to commit rape’” given that “the employee ‘had no prior criminal record, no history of violent behavior, and certainly no history indicating that he harbored a propensity to commit rape.’” Here, there was “no evidence establishing a factual dispute whether defendants were aware of Babu-Rao’s sexual assault of Cummings, or of his other alleged sexual improprieties. Although ‘[k]nowledge of an employee having actually committed another rape would justify anticipating that the employee would reoffend, if the employer had good reason to know of the prior crime[,]’” in this case there was “no evidence to suggest defendants knew about Babu-Rao’s sexual assault of Cummings or others before Babu-Rao’s sexual assault of Turrentine.”