The Volokh Conspiracy
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Democratic National Committee Not Liable for Field Organizer's Alleged "Grooming" of 16-Year-Old Campaign Volunteer, Which Led to Sex
From yesterday's decision by Judge Gerald Pappert (E.D. Pa.) in D.F. v. DNC Servs. Corp.:
D.F. was a [16-year-old] high school student in the summer of 2012 when she volunteered with Organizing for America, an arm of the Democratic National Committee, to work on the presidential campaign.
Killackey, a 38-year-old field organizer in the office, "allegedly 'groomed' D.F., leading to a sexual relationship between the two, which D.F. contends was unwanted and abusive":
He allegedly "took an immediate and unusual interest" in D.F. and openly flirted with her, referred to her as "precocious," and gave her gifts. D.F. alleges that Killackey was "groom[ing]" her "for sexual exploitation and abuse."
In June of 2012, D.F. asked staff at the Bristol office for a ride home from work, and Killackey agreed to give her one. D.F. alleges that Killackey flirted with her in his car and that she told him "she may have a crush on him." Killackey allegedly pulled the car over and, without D.F.'s consent, touched and spoke to her in a sexual manner. D.F. alleges that later that summer, Killackey "brought [her] to his apartment" and "proceeded to initiate sexual intercourse," after which a "sexually abusive relationship" continued throughout the summer and into the school year. The alleged sexual abuse happened in Killackey's car, at his apartment or in public parks. D.F. did not reveal the relationship or the abuse to the DNC or to any staff in the Bristol office.
D.F. sued the DNC for, among other things, negligent supervision, but the court threw that claim out:
[A] claim for negligent supervision must allege that an employer "knew or should have known of a need to supervise the employee, and that, by failing to do so, exposed the plaintiff to the employee's misbehavior." … To state such a claim, D.F. must allege facts sufficient to satisfy two separate inquiries. First, that Killackey harmed her on DNC premises or on premises to which Killackey gained access via his employment, and second, that the DNC could have foreseen the need to control Killackey and that the harm he allegedly caused was reasonably foreseeable….
None of Killackey's alleged misconduct took place at the Bristol Campaign office. D.F. claims Killackey exhibited unprofessional conduct on DNC's premises: he flirted with her, sang a suggestive song about her, called her "precocious," gave her gifts, and made business calls that D.F. joined from his office with the door closed. D.F. also alleges that she and Killackey "openly held each other" and "behave[ed] like boyfriend and girlfriend" at a post-election celebration in Washington, D.C. But D.F. claims the alleged sexual conduct—the abuse—took place in Killackey's apartment, his car or in public parks. The DNC does not have a duty to supervise its employees at their homes, in their cars or in public parks.
D.F. characterizes Killackey's conduct on DNC's premises as "grooming," but none of his alleged on-premises actions were tortious. To state a claim for negligent supervision, D.F. must allege that Killackey committed an intentional tort on DNC's premises or on premises to which he was privileged to access via his employment. She does not….
I doubt that all courts would require, as a condition of negligent supervision claims, that the intentional tort was committed on the employer's "premises or on premises to which he was privileged to access via his employment"; some would allow liability so long as the intentional tort was made possible by behavior within the employment relationship (and there is other evidence of negligent supervision). But Pennsylvania law does appear to impose such an intentional-tort-on-the-premises requirement.
In addition to the premises requirement, negligent supervision claims must satisfy two foreseeability requirements. First, the employer may be liable if "it knew or should have known the necessity" for controlling their employee based on "dangerous propensities that might cause harm to a third party." Second, the harm that the "improperly supervised employee caused" must be reasonably foreseeable. Here, the foreseeability inquiry focuses on Killackey's alleged unwanted sexual acts which are the source of D.F.'s alleged harm.
The DNC could not, based on the amended complaint's allegations, have known Killackey had a propensity to commit sexual abuse…. D.F. concedes that no one with the DNC had actual knowledge of Killackey's propensity to commit harm. She alleges that she told no one with the DNC about the nature of their relationship, and that the DNC never discovered it. D.F. claims only the DNC should have known Killackey had a propensity to sexually abuse her because DNC staff was aware that:
- Killackey was flirtatious with D.F. and called her "precocious";
- Killackey agreed to give D.F. a ride home;
- D.F. and Killackey went canvassing together;
- Killackey gave D.F. a book and other unidentified gifts;
- Killackey exchanged text messages with D.F. on his personal phone;
- Killackey sang a suggestive song from a movie after D.F. made a reference to the film;
- D.F. and Killackey sat in his office with the door closed while he made calls;
- D.F. joined DNC staff to watch election results at a bar, where she and Killackey sat next to each other;
- At an inaugural ball in Washington, DC, the two "held each other" and "openly behav[ed] like boyfriend and girlfriend." …
The prior conduct need not be an exact match for the tortious conduct, but the employee "must have committed prior acts of the same general nature as the one for which the plaintiff brings suit—acts that show the employee is 'vicious or dangerous and … intended to inflict injury upon others.'" While D.F.'s allegations could allow the inference that DNC staff witnessed unprofessional conduct in the workplace, they do not establish that the staff should have foreseen Killackey might sexually abuse her outside the workplace. And the harm Killackey allegedly caused was not reasonably foreseeable for the same reasons the DNC could not have known of Killackey's propensity to commit sexual abuse. "A harm is foreseeable if it is part of a general type of injury that has a reasonable likelihood of occurring." D.F. has not alleged facts to plausibly establish that the harm—Killackey's alleged sexual abuse—was reasonably foreseeable….
The claim of negligent failure to report child abuse fails for the same reason: D.F. insufficiently alleges the DNC had reason to suspect Killackey's alleged abuse…. [A]t most, D.F. alleges DNC staff were aware of Killackey's unprofessional conduct—not that they were aware of the alleged abuse, which took place away from the workplace and which D.F. never mentioned or alluded to….
The plaintiff's conspiracy and aiding and abetting claims were also thrown out, since to show that one needs to show even more than negligence—agreement "to perform an unlawful act" for conspiracy, and "'actual knowledge' of the tort, which knowledge may be inferred by 'willful blindness'" for aiding and abetting. And plaintiff's vicarious liability claim were thrown out as well:
An employer may be vicariously liable for its employees' tortious acts committed during the scope of their employment. But if "an assault is committed for personal reasons or in an outrageous manner, it … is not done within the scope of employment." Pennsylvania courts "have consistently held that sexual abuse of minors falls outside an employee's scope of employment." D.F. fails to allege that Killackey's conduct was "actuated by any purpose of serving" his employer and she therefore fails to state a claim for the DNC's vicarious liability….
The assault, battery, and intentional infliction of emotional distress claims against Killackey are pending. Note that the general age of consent for sex in Pennsylvania is 16, but plaintiff alleges that much of the behavior was actually nonconsensual.
