United States District Court, E.D. Pennsylvania
E.K. Pratter United States District Judge.
guest was assaulted by a massage therapist during a massage
session at a spa-gym located on the hotel premises. The guest
sued both the gym and the hotel. Both the gym and the hotel
have filed motions for summary judgment, and the issue of
their notice of the therapist's violent history looms
a reasonable jury could find that the gym should have been on
notice of - and, arguably, should have taken action on - the
therapist's history of sexual assault, the Court denies
summary judgment for the gym except as to claims against the
gym's owner. But because the guest has provided no cause
of action to hold the hotel liable for the torts of the
independent-contractor gym, the Court grants summary judgment
for the hotel.
2014, the Loews Philadelphia Hotel contracted with the 12Fit
Gym to operate a spa inside the hotel. 12Fit, in turn, hired
Jerome McNeill as a massage therapist, but did so without
conducting a criminal background check.
McNeill had a checkered past. In 2007, he was arrested and
charged with the alleged rape of a minor. The charges were
ultimately withdrawn. In 2013, he was convicted of reckless
endangerment for fleeing a police officer on a motorcycle. In
2014, shortly before joining 12Fit, Mr. McNeill was fired
from his job as a massage therapist at Hand & Stone Spa
for sexually assaulting a patron, an accusation as to which
he was acquitted in late 2016.
hiring Mr. McNeill, 12Fit did not verify Mr. McNeill's
employment history. Nor did 12Fit contact his prior employer
Hand & Stone to inquire into why Mr. McNeill no longer
worked there. The extent of 12Fit's research on Mr.
McNeill was to note that he had a then-valid Pennsylvania
September 14, 2014, Mr. McNeill sexually assaulted Elena
Myers Court, a Loews hotel guest, during a massage session.
Loews and 12Fit largely ignored Ms. Court's on-site
report of what happened. In the weeks that followed, Mr.
McNeill sexually assaulted two more women, each of whom
reached settlements with Loews.
September 2016, Ms. Court sued two groups of defendants, the
“Loews Defendants” associated with the hotel, and
the “Gym Defendants” associated with the 12Fit
gym and spa. She alleged negligence, negligent hiring, and
negligent infliction of emotional distress. The Gym
Defendants filed a motion to dismiss in late 2016, which was
denied on February 13, 2017. See Court v. Loews
Philadelphia Hotel, Inc., No. 16-4848, 2017 WL 569522
(E.D. Pa. Feb. 13, 2017). Now, both groups of defendants have
filed motions for summary judgment and presented oral
arguments on the motions. Ms. Court opposes both motions.
reasons that follow, the Court denies the Gym Defendants'
motion (except as to the counts against 12Fit owner Frank
Baer) and grants the Loews Defendants' motion.
shall grant a motion for summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). An issue is
“genuine” if there is a sufficient evidentiary
basis on which a reasonable jury could return a verdict for
the non-moving party. Kaucher v. Cnty. of Bucks, 455
F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual
dispute is “material” if it might affect the
outcome of the case under governing law. Id. (citing
Anderson, 477 U.S. at 248). Under Rule 56, the Court
must view the evidence presented on the motion in the light
most favorable to the non-moving party. See
Anderson, 477 U.S. at 255. However, “[u]nsupported
assertions, conclusory allegations, or mere suspicions are
insufficient to overcome a motion for summary
judgment.” Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 252 (3d Cir. 2010).
movant bears the initial responsibility for informing the
Court of the basis for the motion for summary judgment and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
non-moving party bears the burden of proof on a particular
issue, the moving party's initial burden can be met
simply by “pointing out to the district court that
there is an absence of evidence to support the nonmoving
party's case.” Id. at 325. After the
moving party has met the initial burden, the non-moving party
must set forth specific facts showing that there is a
genuinely disputed factual issue for trial by “citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . ., admissions,
interrogatory answers, or other materials” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute.” Fed.R.Civ.P.
judgment is appropriate if the non-moving party fails to
rebut by making a factual showing “sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
of Claims Against the Gym Defendants
Defendants' primary argument is twofold: they had no
notice of the danger posed by Mr. McNeill, and even if they
had notice, they were prohibited by Pennsylvania law from
acting on it. They use this argument to attack Ms.
Court's claims for negligent hiring, negligent retention
and supervision, and negligent infliction of emotional
Court first rejects this argument in the context of the claim
for negligent hiring: a reasonable jury could find that the
Gym Defendants should have been on notice, that they could
have acted on that notice, and that their failure to do so
warrants punitive damages. Second, the Court applies the same
reasoning to the claim for negligent retention and
supervision. Third, the Court rejects the same notice-based
challenge to the claim for negligence infliction of emotional
distress, as well as a separate argument based on proximate
cause. Fourth, the Court grants summary judgment as to any
claims against 12Fit owner Frank Baer individually.
Pennsylvania, a negligent hiring claim requires a plaintiff
to show the usual elements of negligence: duty, breach,
causation, and damages. Belmont v. MB Inv. Partners,
Inc., 708 F.3d 470, 487-88 (3d Cir. 2013) (citing
Brezenski v. World Truck Transfer, Inc., 755 A.2d
36, 42 (Pa. Super. Ct. 2000)). In addition, a plaintiff must
demonstrate that the employer was on notice of the
employee's propensity for violence and created a
situation where the employee could harm someone. Coath v.
Jones, 419 A.2d 1249, 1250 (Pa. Super. Ct. 1980);
see also Rios v. Marv Loves 1, No. 13-1619,
2015 WL 5161314, at *13 (E.D. Pa. Sept. 2, 2015). The notice
requirement relates to the usual elements of negligence in
two ways: (1) but for the defendant's breach of the duty
of reasonable care, the defendant would have known about the
employee's dangerousness, and (2) the failure to know of
(and act on) the dangerousness caused the plaintiff's
incidents from Mr. McNeill's past would have put the Gym
Defendants on notice of his propensity for sexual violence:
his 2007 arrest for molesting a minor and his 2014 firing
from his previous employer (Hand & Stone) for allegedly
sexually assaulting a client.
Defendants' only two avenues for discovering these prior
incidents were for the Gym Defendants to have checked Mr.
McNeill's criminal records and asked Hand & Stone why
Mr. McNeill was fired. It is undisputed that the Gym
Defendants did not do so and did not otherwise verify Mr.
McNeill's criminal or employment history. Thus, the issue
here turns on whether the Gym Defendants should have been
obliged to perform such verification, and, had they done so,
would have learned (and been legally able to act on) any
material information. For the reasons that follow, the Court
holds that (A) the Gym Defendants breached their duty to
conduct a reasonable investigation; (B) that breach caused
Ms. Court's injuries; and (C) Ms. Court's damages may
include punitive damages.
Relying only on Mr. McNeill's massage license did not
satisfy the Gym Defendants' duty of reasonable care as a
matter of law.
initial matter, the Gym Defendants argue that they did not
breach any duty of care. They point out that they relied on
Mr. McNeill's massage license in hiring him. As the Court
explained in February, this reliance does not satisfy their
duty of reasonable investigation as a matter of law:
The Gym Defendants argue that they satisfied any duty owed to
Ms. Court because they justifiably relied on Mr.
McNeill's massage therapy license, which was in good
standing at the time the Gym Defendants hired Mr. McNeill.
The Gym Defendants assert that the Commonwealth of
Pennsylvania regulates massage therapists and that Mr.
McNeill's massage license indicated that he was of
“good moral character.” See 63 P.S.
§§ 627.5(a)(1), 627.5(b)(2). This argument is
unavailing. Pennsylvania's massage therapy licensing
board relies on massage therapists to self-report “the
filing of formal criminal charges.” 49 Pa. Code §
20.31(d)(2). The Court is not convinced that, as a matter of
law, an employer's duty to conduct a pre-employment
investigation is met solely by relying on a license subject
to self-reporting requirements. Furthermore, the Court is not
prepared to acknowledge a safe harbor from negligent hiring
and/or supervision actions for employers that rely on a
prospective employee's professional license. The Gym
Defendants have provided no case law to support such a
Court, 2017 WL 569522, at *5. What is more, 12Fit
owner Frank Baer now admits that it was a mistake to rely on
the license alone. Plf. Statement of Facts ¶¶
81-82. A reasonable jury could find that the Gym Defendants
breached their duty of reasonable care in investigating Mr.
McNeill before hiring him.
A reasonable jury could find that breaching the duty of
reasonable investigation caused Ms. Court's
described above, Mr. McNeill was arrested and charged (but
not convicted) of raping a minor in 2007. A reasonable jury
could conclude that the Gym Defendants' failure in 2014
to check Mr. McNeill's criminal history fell below the
standard of care in hiring. Had the Gym Defendants checked
Mr. McNeill's criminal background, they would have been
on notice of Mr. McNeill's violent past.
Defendants argue that their failure to run a background check
was not a but-for cause of Ms. Court's injuries. Put
differently, they argue that, even if they had satisfied
their duty of reasonable care and learned of the 2007 arrest,
they still would have hired Mr. McNeill anyway. They contend
that even if an adequate background check would have put them
on notice of Mr. McNeill's past, they could not have
acted on that notice. The Gym Defendants arrive at this
unusually candid conclusion by reasoning that they were
legally obligated not to consider the 2007 arrest
because of the Criminal History Records and Information Act.
The CHRIA provides, in pertinent part:
(a) General rule. - Whenever an employer is
in receipt of information which is part of an employment
applicant's criminal history record information file, it
may use that information for the purpose of deciding whether
or not to hire the applicant, only in accordance with this
(b) Use of information. - Felony and
misdemeanor convictions may be considered by the employer
only to the extent to which they relate to the
applicant's suitability for employment in the position
for which he has applied.
18 Pa. C.S. § 9125. “Criminal history record
information” includes arrests. Id. §
9102. In other words, potential employers may only use
information about an applicant's convictions, and only
those convictions that relate to the applicant's fitness
for the particular position. See Foxworth v. Pa. State
Police, 228 F. App'x 151, 154-55 (3d Cir. 2007).
initial matter, the Gym Defendants here concede that they can
identify only cases in which the CHRIA is a sword -
imposing liability on a prospective employer for considering
a prospective employee's criminal history. They cannot
identify any cases that present the fact pattern here, in
which an employer seeks to use the CHRIA as a shield
- protecting the employer from liability to a third-party
the Gym Defendants argue that the CHRIA would have made it
illegal for them to consider Mr. McNeill's 2007 arrest in
making their hiring decision. But the staff that hired Mr.
McNeill testified in their depositions in this case that they
would not have hired him had they known about his past. This
does not necessarily amount to an admission that they would
have violated CHRIA.
a reasonable jury could conclude that running a criminal
background check would have uncovered the 2007 arrest, and
could then infer that this discovery should have touched off
a further investigation. Furthermore, the jury could conclude
that the investigation would have potentially yielded three