Torts

Legal Duty to Report Your Coworkers' Off-the-Job Crimes?

A New Jersey appellate court said a co-worker relationship (if long-lasting and close enough) "would be adequate to fairly warrant the imposition of a duty to act." The New Jersey Supreme Court declined to opine on this, and instead concludes that such a duty wouldn't be triggered on the facts of this case.

|The Volokh Conspiracy |

Last August, I wrote about the New Jersey Appellate Division decision:

Say a coworker is chatting with you at work, and the coworker says something that suggests that he's having sex with a teenager who's just below the age of consent. The relationship has nothing at all to do with your company. It's not on company property. It's not on company time. It's not enabled by the coworker's job. Nor is there a state statute obligating you to report suspected sex crimes you hear about.

What do you do? Maybe you might call the police, to tip them off to the possible crime. Or maybe you're not sure there is a crime (the coworker hasn't outright confessed to the crime). Or maybe you're wary of the police, and don't want to get them involved. Or maybe you're not wild about the state's statutory rape law—you're not going to violate it yourself, but you don't want to turn someone in for it. Or maybe (rightly or wrongly) you just don't want to be seen as the kind of guy who turns his acquaintances in to the police.

Well, in New Jersey, you'd better call the police—or else you could get sued by the victim. Indeed, the victim could also sue your employer for your failure, so your employer had better have a policy requiring employees to call the police in such situations, and had better develop a track record of enforcing the policy. That's what a New Jersey decision from a couple of weeks, G.A.-H. v. K.G.G., threatens.

The New Jersey Supreme Court agreed to consider the case, and I just learned that late last month it reversed the Appellate Division decision. It didn't decide the general legal question of whether such a coworker duty exists, holding instead that, on the facts of this particular case, no such duty would be triggered in any event. But at least the Appellate Division decision is no longer precedent. An excerpt:

In this case, we consider whether defendant A.M. (Arthur) was obligated to report that his co-worker K.G.G. (Kenneth) was engaged in a sexual relationship with a [15-year-old]; whether their employer, GEM Ambulance, LLC (GEM), is vicariously liable for Arthur's failure to report; and whether GEM negligently retained, trained, or supervised Arthur or Kenneth.

Plaintiff [sued not just Kenneth but also Arthur and GEM], alleg[ing] that Arthur should have reported Kenneth to supervisors at GEM and that GEM was both vicariously liable for Arthur's failure to report Kenneth's conduct and negligent in retaining, training, and supervising Arthur and Kenneth…. The Appellate Division … [held that the case could go forward] because, in its view, "the common law does not necessarily preclude the imposition of" a duty to report that a co-worker is engaged in a sexual relationship with a minor and the record here was not sufficiently developed to determine whether Arthur knew of Kenneth's illicit sexual relationship with plaintiff.

We reverse … [because] no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Accordingly, Arthur had no duty to report Kenneth…. [W]e need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee….

In J.S. v. R.T.H. (N.J. 1998), this Court held that a spouse owes children sexually abused by her husband a duty of care "to take reasonable steps to prevent or warn of the harm" when she has "actual knowledge or special reason to know that her husband is abusing or is likely to abuse an identifiable victim." We need not decide whether that duty should apply to co-workers because no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in an illegal sexual relationship with a minor.

The plaintiff has pointed to the following facts to establish a duty of care for Arthur to report Kenneth:  (1) Kenneth walked plaintiff to her bus stop  while she carried a backpack; (2) Kenneth  gave inconsistent accounts of the  age of his "girlfriend" when bragging to co-workers about his "girlfriend"; and (3) Kenneth showed Arthur pictures or videos of a naked female on his flip-phone. However, those facts do not establish that Arthur knew Kenneth was engaged in a sexual relationship with a minor—nor do those facts establish a "special reason [for Arthur] to know" that Kenneth was engaged in a sexual relationship with a minor.

It is often difficult to know someone's age based upon appearance alone…. Nothing in the record suggests that Arthur viewed any pictures or  videos of plaintiff.   But, even assuming he did, in order for Arthur to know  that plaintiff was below the age of consent, he would have had to perceive the difference between someone who is above or below the age of consent based upon appearance alone and from a small cellphone image. A small cellphone image of a naked female does not give rise to a "special reason to know" that Kenneth was engaged in a sexual relationship with a minor.

We further hold that there are no facts presented upon which liability could attach to GEM. Because Arthur did not commit a tort, GEM cannot be held vicariously liable for his conduct.  And the record does   not adequately support plaintiff's claim for negligent retention, training, or supervision. Although plaintiff has pointed to various actions by Kenneth that occurred at work, the only tort in this case is Kenneth's off-duty abuse of plaintiff.  That Kenneth bragged about having a younger "girlfriend" at work  and also drove a GEM ambulance to plaintiff's bus stop [to meet plaintiff] does not make GEM negligent in retaining, training, or supervising Kenneth or Arthur….

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  1. The NJ appellate court apparently seems to think 1984 is a “how-to guide”, and the NJ Supreme Court lacks the courage to do what’s right.

    1. The NJ appellate decision was vacated in it’s entirety, so I’m baffled as to what you think the NJSC didn’t do that it should have?

    2. I flagged that comment by mistake trying to close a popup.

  2. If the coworker has a duty to report, surely the offender has a duty to report. After all, who has “special knowledge” of the offense greater than the offender himself?

    Then, of course, the employer should have required the offender to disclose any offenses he might have been engaged in, in order to ensure that no ongoing offenses involving the company in liability were occurring. This offense didn’t involve the company directly, but they should have been aware of the offense, and of course, should have then counseled offender to go self-report to the police. They don’t seem to have done so, so they are liable not vicariously, but for their own failure to act.

    But… the victim was ALSO aware of the offense, and did not reveal it to offender’s employer, thus limiting the liability to nominal damages, at best.

    1. Every company needs to incorporate the entire legal code into their personnel handbook,and re-issue it every time said legal code changes.

      Heaven help them is they have offices in multiple states — merely talking on the phone interstately puts them at risk. International? Good God, don’t even ask! I bet if an employee even takes an interstate vacation makes them liable, and can you imagine what horrors await any international vacationer?

      Don’t let employees talk on the phone or use Facebook to communicate with out-of-state relatives.

  3. Might there be an exception for clergy-colleagues?

  4. Wondering if the First Amendment protects remaining silent?

    1. The government can compel you to buy broccoli. I bet they can compel you to ask its price, and it’s just a short walk off a long pier to compel other speech.

      1. Seems to me freedom of speech would include not speaking.

        1. nor shall be compelled in any criminal case to be a witness against himself

          Isn’t there some legal principle that if something is written in one place but not another, the difference must be presumed intentional? I wonder how long it will take for some Supreme Court to decide the First Amendment doesn’t prevent the government compelling speech when not as a witness against oneself.

          1. ” I wonder how long it will take for some Supreme Court to decide the First Amendment doesn’t prevent the government compelling speech when not as a witness against oneself.”

            The answer is, of course, that this happened quite some time ago. You can be compelled to identify yourself to a law enforcement officer. Neither the First nor the Fifth protects your right to decline to do so.

        2. Because we’re not as different from our Puritan forebears as we’d like to believe, any potential crime with the whiff of the s-e-x word on it (and is of a type thought to be mostly male perpetrated) is automatically exalted to a category beyond even murder or genocide. Any constitutional protections or safeties such as presumption of innocence must be overridden because there is nothing that matters more than appearing to the public to stamp it out by any means necessary regardless of cost or whether theres any smarter way to solve the problem.

  5. EV’s headline for this post:

    “Legal Duty to Report Your Coworkers’ Off-the-Job Crimes?
    A New Jersey appellate court said “yes””

    Opening paragraph from the appellate court decision:

    “In this appeal, we examine whether tort liability may be imposed when one remains silent and fails to warn a victim or alert authorities despite knowledge or a reason to suspect that a co-worker has engaged in the sexual abuse of a minor. In our view, the common law does not necessarily preclude the imposition of such a duty. Ultimately, that issue must await further development of the facts surrounding the relationship between the abuser and his co-worker, as well as the facts regarding the co-worker’s awareness of the abuse that was unduly limited by the trial judge’s failure to permit plaintiff discovery of evidence in the prosecutor’s possession.”

    Am I reading the wrong judicial opinions that these blog posts are supposed to be referring to? Where exactly in that appellate decision did the court say “yes” to the question of whether a co-worker has a legal duty to report his colleague’s off-the-job crimes.

    I feel like I’m being trolled….

    1. If the answer is no, there’s no other court proceedings. The appellate court ruled that the answer might be “yes”… in some circumstances, into which which the trial court did not permit any inquiry.

      It’s more accurate to say the appellate court ruled “maybe” rather than “yes”, but they overruled the trial court’s “no”.

      1. I think the Appellate Division did conclude there was such a duty (at least for sufficiently longstanding and close coworker relationships), but I’ve revised the subtitle to include a quote from the Appellate Division opinion. The full quote is,

        In J.S., the abuser and the defendant were married.
        We readily reject Arthur and GEM’s contention that the buck must
        stop there. There are no doubt other types of relationships, including those who have worked together for a sufficiently
        reasonable amount of time and intensity, that would be adequate
        to fairly warrant the imposition of a duty to act.

        1. “I think the Appellate Division did conclude there was such a duty (at least for sufficiently longstanding and close coworker relationships)”

          That’s what I mean by “maybe”… they weren’t entirely clear on when or how this duty arises or how it might be dissipated.

  6. […] Click here to view original story: Legal Duty to Report Your Coworkers’ Off-the-Job Crimes? […]

  7. For some reason this case has “clearly established” and “qualified immunity” are spinning in my head even though there aren’t any government actors involved.

  8. 1st day of torts:
    A tort requires, inter alia, that there exist a “duty” that the defendant owes the plaintiff.
    I can’t believe a lawyer actually sued under this theory.
    That he/she got it past an appellate court makes me shudder.

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