Employer May be Liable for the Acts of an Employee Under Premises Liability but Not Negligent Hiring

In an action arising out of the sexual assault of Nia Cleveland by a massage therapist at a spa owned by Team RTR2, LLC d/b/a Zen Massage (“Zen Massage”), the Georgia Court of Appeals found that although Zen Massage may be liable for premises liability claims, it was not liable for claims asserting negligent employment. Cleveland v. Team RTR2, LLC, A20A2080, (Ga. Ct. App. Feb. 3, 2021). In June 2015, Cleveland went for a massage at Zen Massage. Gary Tavares was assigned as her massage therapist and, at the end of the session, Tavares sexually assaulted Cleveland while showing her some stretches. After Cleveland left the spa, she called the police and then reported the assault to an employee at Zen Massage. The following day, Mary LaBroi fired Tavares. Tavares was ultimately arrested for aggravated sexual battery.

Discovery revealed that, in 2011 through 2012, there were five separate instances in which different women were sexually assaulted by another male massage therapist during their sessions at Zen Massage, and the owners were aware of these incidents. LaBroi also confirmed that she had never received any complaints about Tavares. Mary further testified that Tavares was an independent contractor; that she screened him as she did all applicants for a massage therapist position; ensured that he had a state-issued license and a county permit; performed a background check; and, confirmed that he carried his own liability insurance. Zen Massage moved for summary judgment, arguing that Cleveland's claims were precluded because (1) Tavares was acting beyond the scope of his employment; and, (2) Cleveland failed to show proximate causation because Tavares's actions were not reasonably foreseeable to Zen Massage.

In Georgia, a proprietor owes its invitees a duty “to exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A. § 51-3-1. Typically, a proprietor is insulated from liability for third-party criminal acts unless the act was reasonably foreseeable. Here, the record revealed that, within the previous four years, there had been five incidents involving a sexual assault or inappropriate touching by a male massage therapist against a female client. In addition, during their depositions, both owners confirmed that they knew about the similar incidents at Zen Massage prior to Cleveland's assault. As such, the Court held that Cleveland’s premises liability claims survived summary judgment.

An employer breaches its duty of care by hiring an employee who is not accustomed to act with due care. The causation element requires showing that, given the employee's dangerous propensities, the victim's injuries should have been foreseen as the natural and probable consequence of hiring the employee. Here, there was no evidence in the record that established that Zen Massage knew or should have known of Tavares's dangerous propensities. Rather, Zen Massage took multiple steps to ensure that Tavares passed a criminal background check and was properly licensed and permitted. The Court found that the owners appropriately relied on these background checks and additional measures and dismissed Cleveland’s claims of negligent hiring and retention.