Claims against Employers for Employee’s Attack on Patient Survive Summary Judgment

A recent decision by the Georgia Court of Appeals in Little-Thomas v. Select Specialty Hospital-Augusta, Inc. (Case No. A15A0606), highlights how important it is for employers to be diligent in ensuring a safe workplace for employees and visitors.

The plaintiffs in Little-Thomas, brought a lawsuit against Select Specialty Hospital-Augusta, Inc. (“the Hospital”) alleging negligent hiring, retention, and supervision and premises liability after Ms. Little-Thomas was sexually assaulted and raped in June 2009 by a certified nursing assistant, Mr. Butler, while she was a patient at the Hospital. After discovery, the court granted summary judgment to the Hospital and the plaintiff appealed. As detailed below, the court of appeals affirmed in part and reversed in part the trial court’s decision.

First, the plaintiffs alleged the trial court erred in granting summary judgment to the Hospital on their negligent hiring claim, asserting that the Hospital did not perform an appropriate screening and, if it had, it would have discovered Butler had been terminated at least once for rude and discourteous behavior. Without criticizing the Hospital’s hiring process, but assuming that the information obtained by the Hospital was incomplete or inaccurate, the court of appeals affirmed the grant of summary judgment, pointing out that, in order to prove a claim of negligent hiring, “[t]here must be some evidence that the Hospital should have known of Butler’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff, such that it is reasonably foreseeable that the employee would cause the type of harm sustained by the plaintiff.”

Second, the plaintiffs alleged the trial court erred in granted summary judgment to the Hospital on their negligent retention and supervision claim, asserting that evidence of patient complaints about Butler, including an incident in 2004 where Butler “inappropriately touched” a female patient, was sufficient to support their claim. The appellate court agreed, noting that, while the evidence of Butler’s prior rude and disrespectful behavior toward patients might not be sufficient, the prior non-consensual sexual contact with a patient was sufficient to allow “a rational trier of fact [to] conclude that the Hospital knew or should have known that Butler displayed tendencies that could have caused the harm suffered by [the plaintiff]” and “that Butler posed more risk than merely a poor bedside manner would portend.”

Finally, the plaintiffs alleged that the trial court erred in granting summary judgment to the Hospital on their premises liability claim, asserting that evidence of sexual assaults of at least 5 other women between 2004 and 2008 was sufficient to support their claim. The court agreed, noting that the trial court’s requirement that there be evidence of actual sexual assault in order to put the Hospital on notice was error. In doing so, the court of appeals dismissed the Hospital’s argument that prior reports were not credible, holding that evidence that the prior acts were substantially similar to the harm alleged by the plaintiff was sufficient to defeat summary judgment and that whether the prior reports were credible or warranted liability was an issue to be resolved by the jury. This portion of the ruling is of particular interest because the court did not appear differentiate between attackers who were employees, family members or persons known to the victim, or outsiders.