March 2020 - Parks & Recreation - 34

L AW R EV I EW

The appeals court
acknowledged that " sexual
misconduct " in the workplace
by an employee would not
constitute acts within the
furtherance of the employer's
business.

inal acts are not performed in furtherance of the master's business,
the master will not be held liable
as a matter of law even though the
employment situation provided
the opportunity for the servant's
wrongful acts or the means for carrying them out.
As noted by the court: " where
an employee commits an assault
in order to effect a purpose of his
or her own, the employer is not li-

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Parks & Recreation

able. " Moreover, the appeals court
acknowledged that " sexual misconduct " in the workplace by an
employee would not constitute acts
within the furtherance of the employer's business:
Washington case law is clear
that unless an employee's sexual
misconduct was foreseeable, the
employer is generally not liable.
For an employer to be vicariously
liable for an employee's misconduct, the threshold questions are
whether that employee was acting in the furtherance of the employer's business and within the
scope of employment.... [W]here
an employee's acts are directed
toward personal sexual gratification, the employee's conduct falls
outside the scope of his or her
employment.
In this particular instance, the
court acknowledged: " Frick's con-

| M A R C H 2 02 0 | PA R K S A N D R E C R E AT I O N .O R G

duct of attaching a cellphone with
a camera inside a locker to record
his coworkers changing is an undisputed fact. " Moreover, the
court noted: " This act was clearly
unauthorized by Aquatic Center
management and undertaken for
Frick's own sexual gratification so
should be understood as squarely outside his scope of employment. " Since Frick had " engaged
in this conduct for personal gratification unrelated to his employer, "
the appeals court concluded, " the
City cannot be vicariously liable. "
Accordingly, the appeals court
held: " The trial court's ruling on
summary judgment in favor of
the City on the vicarious liability
claims was proper. "

Direct Liability
In contrast to vicarious liability
wherein an employer may be legally responsible for the negligent
acts of an employee committed
within the scope of employment,
the appeals court noted: " An employer can be directly liable for
conduct that is outside of the
scope of employment if the acts
of the employee were foreseeable. " For such " direct liability, "
the court further noted the appropriate legal standard would be
" whether the employer had prior
knowledge of the dangerous tendencies of the employee. "
Under this legal standard
for determining direct liability
for an employer's negligence,
the appeals court agreed with
the City's assertion that " all of
the Rideouts' direct negligence
claims turn on the foreseeability
of Frick's actions. " Based upon
the pretrial record before the trial court, the appeals court found:
March 2020 - Parks & Recreation

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