As a Yale alum, I was shocked and horrified by the death of Annie Le, a Yale School of Medicine student murdered just a week before her own wedding. Like the Petit family murders, the crime was just a depraved act by a stranger, despite attempts by some to downplay it as a “crime of passion” or “workplace violence,” as if any rape-murder were less evil if the perpetrator had delusions of attachment at the time of the crime or if they happened to be employed by the same company. She was targeted and it was murder; we know that from the guilty plea. It may have been sexual assault, too; Raymond Clark submitted an Alford plea to that.
Last week, just before the statute of limitations for negligence would run, Le’s estate filed a wrongful death lawsuit against Yale:
The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harrassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.
The complaint is here. While I can understand why the estate’s lawyers, Joseph Tacopina (Greenfield, who knows him, has a bit more about him here) and Paul Slager, want to tie Le’s death to the Title IX problems at Yale and thereby generally show university indifference to women’s safety, I don’t see that serving as enough of a factual basis for an independent legal claim. There’s no clear causal connection between Yale’s sexual harassment / sexual assault policies and Le’s death; as far as I’ve seen, Le never filed any sort of sexual harassment or sexual assault claim at the school, so it’s hard to claim that, if those policies had been better, she wouldn’t have been murdered.
Although there’s technically an inadequate security claim in there arising from the security of the building and the failure to search for Le, I don’t see the causal connection there: from all accounts, it seems that, if they had searched earlier, they just would have found Le’s body earlier, rather than preventing the attack.
The strongest claim is predicated on the hiring of Clark himself, and that claim has a bit more behind it and a much closer connection to her death:
The complaint alleges that Yale was negligent in its screening of Clark, who had shown “a violent propensity towards women” before he was hired in 2004. As police began to investigate his possible involvement in Le’s death in mid-September 2009, the New Haven Independent reported that Clark forced his high school girlfriend to have sex with him when they were students …
In addition to Clark’s records, the suit alleges Yale had access to information about Clark’s violent past because the University also employed Clark’s sister and brother-in-law as laboratory technicians in the 10 Amistad St. building where Le was killed. Those two employees were both “well aware” of Clark’s past behavior given their relationship to him, the suit claims.
This sort of negligent hiring claim isn’t novel. The primary case in that field is Ponticas v. KMS Investments, 331 N.W.2d 907 (Minn. 1983). It wasn’t the first, but it’s probably the most frequently cited, and it set the path for tort liability where an employer is alleged to have negligently hired a dangerous or incompetent person:
Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.
Connecticut’s appellate court has already adopted the same theory in Seguro v. Cummiskey, 82 Conn.App. 186 (2004):
A review of case law in other jurisdictions reveals that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party. See, e.g., Island City Flying Service v. General Electric Credit Corp., 585 So. 2d 274, 276 (Fla. 1991)(“employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others”); Henley v. Prince George’s County, 305 Md. 320, 336, 503 A.2d 1333 (1986) (employer has duty to use reasonable care to select employees competent and fit for work assigned to them); Ponticas v.K.M.S. Investments, 331 N.W.2d 907, 910 (Minn. 1983) (“person injured by a negligently retained employee may recover damages from the employer”); Di Cosala v. Kay, 91 N.J. 159, 170-71, 450 A.2d 508 (1982) (“employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees”); Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 346 (R.I. 1994) (recognizing “`direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or unsuitable employees'”); Welsh Mfg. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984) (“employer may be directly liable for wrongful acts of its negligently hired employee”); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208-209, 372 S.E.2d 391 (1988) (recognizing tort of negligent hiring).
Unfortunately, it looks like a hard sell for the Le estate. As Everett Rosenfeld’s quite thorough YDN article continues:
But Yale could not be assumed to know about Clark’s past legal issues because employers cannot access a job seeker’s juvenile criminal records, according to Paul Carty, a New Haven lawyer who has been practicing personal injury law for 26 years. He said that the Le estate’s allegations that an employer needs to screen job candidates so intensely “border on the ridiculous.”
Aside from a speeding ticket, Clark had no adult criminal record in the state of Connecticut as of fall 2009, according to the Independent. Conroy denied that the University could have known Clark was a danger to others.
“Yale had no information indicating that [former lab technician and Le’s killer] Raymond Clark [III] was capable of committing this terrible crime, and no reasonable security measures could have prevented his unforeseeable act,” Conroy said.
David K. Jaffe, a partner at Brown, Paindiris & Scott in Hartford and an expert on personal injury cases, said that Tacopina and Slager must be able to show that Yale had information that indicated Clark was dangerous.
“Depending on what’s in [Clark’s personnel] file, and if Yale has a reasonable screening process or not, then there could be a good suit,” Jaffe said. “But these suits are not easy to prove.”
I lean more towards the “not easy to prove” analysis than the “border on the ridiculous.” It’s tricky to argue that an employer should have looked beyond the adult criminal record and into incidents that happened when Clark was a juvenile, but maybe there are other facts buried in there we don’t know. As the South Dakota Supreme Court recently described in Kirlin v. Halverson, 758 N.W.2d 436 (S.D. 2008):
We observe that courts addressing the amount of inquiry required into an applicant’s history have concluded that when an employee’s contact with the public is minimal there is no duty to perform a background check. See Connes v. Molalla Trans. Sys., 831 P.2d 1316, 1321-22 (Colo. 1992) (concluding that the scope of an employer’s duty in exercising reasonable care in hiring depends largely on the anticipated degree of contact the employee will have with others in the normal course of employment. Accordingly, where the employment calls for minimal contact between the employee and others, there may be no reason to conduct an investigation beyond obtaining prior employment information and personal interview data);Garcia v. Duffy, 492 So.2d 435, 441-42 (Fla. App.1986) (holding that an employer had no duty to investigate an applicant’s background where job duties involved incidental contact with the public).
Conversely, where job requirements bring an employee into frequent contact with the public, or individuals who have special relationships with the employer, the inquiry required expands 453beyond the job application and personal interview to an investigation of the applicant/employee’s background. See Williams v. Feather Sound, Inc., 386 So.2d 1238, 1240 (Fla.App.1980) (recognizing that an employer had no duty to investigate an applicant’s background where he was hired for outdoor maintenance of townhouses and minimal contact with tenants. However, the duty to perform an investigation increased when the employee was transferred to inside work with access to pass keys); Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 913 (Minn.1983) (recognizing that concerning a yard man, a production line worker or other such positions where the employee does not pose a high risk of injury to third persons, minimal investigation in hiring is required. However, an apartment manager’s extensive contact with tenants and access to their apartments carries a duty to conduct an adequate background check); C.K. Security Systems, Inc. v. Hartford Acc. & Indem. Co, 137 Ga.App. 159, 223 S.E.2d 453, 455 (1976) (higher duty when hiring uniformed hotel security guards).
Clark, as a lab technician, didn’t come into frequent contact with the public, but he did have a “special relationship” with the employer, in that he had authorized access both to the lab at 10 Amistad and the lab within there that Le worked in. Did Yale then have a duty to dig beyond a normal criminal record check? If they had, what could they have found, and would that have obligated them not to hire Clark or grant him access to the lab?
That’s what the lawsuit will answer.
One final note. Yale put out a formal statement saying:
Yale had no information indicating that Raymond Clark was capable of committing this terrible crime, and no reasonable security measures could have prevented his unforeseeable act. Annie Le’s murder shocked and deeply saddened the entire Yale community. As a community we united to support and comfort her family and loved ones, and create a lasting memorial to her life. This lawsuit serves neither justice nor Annie’s memory, and the University will defend against it as appropriate.
It’s one thing if Yale denies legal responsibility for the assault, and I’d expect they at least initially put forth a solid defense. Yale, however, has no right to claim what serves “justice” or “Annie’s memory,” and the unsubtle implications of that statement are profoundly insulting to Annie’s family and to our civil justice system. As an alum, I am outraged.