March 2020 - Parks & Recreation - 33

Rideouts) sued the City in April
2017, alleging the City was vicariously liable for Frick's conduct,
the City had created a hostile work
environment by failing to protect
employees from Frick and that the
City breached a duty to inspect for
hazardous conditions.
In December 2017, the City
moved for summary judgment.
In so doing, the City denied any
responsibility; i.e., " vicarious liability " for Frick's conduct since it
was " outside the scope of his employment. " The City also denied
that it had created a hostile work
environment. The trial court
agreed and granted the City's
motion for summary judgment
dismissing all claims against the
City. (In a separate hearing, the
Rideouts later were granted summary judgment on their claims
against Frick.) The Rideouts appealed the City's summary judgment dismissing their claims.

Foreseeable Employee
Misconduct?
On appeal, the City reiterated its
motion for summary judgment argument that " there is no evidence
showing that the City authorized,
knew, or should have known of
Frick's alleged harassing behavior
against his coworkers or that the
City failed to take prompt and adequate remedial action. " Further,
the City claimed there was no evidence of " foreseeability, " which
was " one of the essential elements
of a claim for direct liability for an
employer. " In so doing, the City
noted that the Rideouts themselves
had acknowledged on the record
the lack of foreseeability. Specifically, the Rideouts had said, " absolutely not, " when asked if there

were " any signs that Frick was capable of such behavior. "
In reviewing the trial court's
granting summary judgment to
the City, the appeals court would
determine whether the pretrial
record established there was " no
genuine issue as to any material
fact, " which needed to be resolved
at a trial. Within the context of a
motion for summary judgment,
a " material fact " would be " one
upon which the outcome of the litigation depends. " In the absence
of any " genuine issue of any material fact " in the pretrial record,
the appeals court noted that the
City was " entitled to a judgment
as a matter of law. "
On appeal, the Rideouts did not
challenge the City's denial of vicarious liability; i.e., agency liability
for the negligence of its employees
committed within the scope of their
employment. Instead, the Rideouts
claimed the pretrial record still
contained unresolved " questions
of fact " as to whether the City had
" direct liability " for negligence under the circumstances of this case.
According to the appeals court:
" Both the vicarious liability of
the City and any independent
direct negligence tort claim of a
hostile work environment hinge
on whether Frick's actions were
foreseeable. "
In reviewing the pretrial record, the appeals court found the
Rideouts had failed to " advance
any genuine issue of material fact
about the foreseeability of Frick's
conduct. " Absent any evidence of
foreseeability, the appeals court acknowledged, Rideouts' claims of
liability against the City would fail.
That being said, the appeals court
did note that the Rideouts had

raised " a general concern of video
voyeurism within public pools. "
However, in the opinion of the appeals court, such general concerns
were " unresponsive to the City's
foreseeability arguments, " denying
any responsibility or liability for
Frick's actions.
Moreover, the appeals court
found the City had a policy in place
in the year when Frick's actions
were discovered, which prohibited
recording devices at Arne Hanna
Aquatic Center. In so doing, the
appeals court found the City had
reasonably addressed the Rideouts'
" generalized concerns within the
pool industry " regarding " video
voyeurism. " Accordingly, in the
opinion of the appeals court, the
City should not " face liability for
Frick's violation of that policy. "

In determining whether the City
should be legally responsible
and potentially liable for the
actions of Frick, the appeals
court cited the traditional
master/servant rule that is
generally applied to determine
employer liability for employee
misconduct.
Master/Servant Liability
In determining whether the City
should be legally responsible and
potentially liable for the actions of
Frick, the appeals court cited the
traditional master/servant rule that
is generally applied to determine
employer liability for employee
misconduct:
Where the servant's intentionally tortious [i.e., negligent] or crim-

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March 2020 - Parks & Recreation

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