I wrote a post about this case earlier, but had time to add some detail. In Hamed v Wayne County, ___ Mich ___; ___ NW2d ___ (July 29, 2011), I represented Wayne County and the Wayne County Sheriff in a lawsuit filed by a detainee in the Wayne County Jail who alleged quid pro quo claim sexual harassment after she was raped by a correctional officer employed in the jail. The County fired the correctional officer and he was prosecuted and convicted for criminal sexual conduct.
The trial court ruled in favor of the county defendants and plaintiff appealed. I was asked by Wayne County to file an appeal and a cross appeal to address certain rulings made by the trial court. In July of 2009, the Court of Appeals reversed the trial court’s decision ruling that under Michigan’s Elliott-Larsen Civil Rights Act an employer could be held strictly liable for the unforeseeable, criminal acts of its employee. Relying on the 1996 Michigan Supreme Court decision in Champion v. Nationwide Security, 450 Mich. 702; 545 NW2d 220 (2006), which held that employers could be held strictly liable for quid pro quo sexual harassment claims arising out of such circumstances. I filed an application for leave to appeal in the Supreme Court, which was granted in June of 2010. My initial position in the Court of Appeals and in the Supreme Court was that over 150 years of common-law jurisprudence in Michigan provided that employers could not be held liable for the intentional, tortious conduct committed by employees acting outside the scope of their employment. The Michigan Constitution preserves the common law until and unless it is explicitly abrogated by statute or a subsequent judicial ruling. Mich. Const. Art. 3, § 7. Nothing in the Civil Rights Act explicitly abrogated this common-law rule. As a result, I argued that Wayne County and the Wayne County Sheriff could not be liable to the plaintiff for the unforeseeable, intentional acts of the jail officer. After presenting oral argument, the Supreme Court (in a 4-3 decision) agreed with me and reversed the Court of Appeals decision. The Court reaffirmed the common-law rule, reasoned that nothing in the Civil Rights Act had abrogated this rule, and ruled that the trial court had correctly entered judgment in the county’s favor. The Court explicitly overruled the Champion decision, holding that claimants could not circumvent the common-law rule by artfully pleading sexual harassment claims under the Civil Rights Act when what they were truly attempting to plead was respondeat superior liability against business and employers for the unforeseeable, intentional acts of employees, which acts were outside the scope of employment. In addition to saving millions of dollars in liability for Wayne County, this case will have a positive future impact for private and public employers throughout the state of Michigan by significantly reducing litigation costs and enabling employers to better assess potential risks and liabilities.