Negligent hiring, retention, & supervision claims; Mueller v Brannigan Bros Rests & Taverns LLC; Employer liability for an employee’s torts; Hamed v Wayne Cnty; Constructive knowledge of alleged prior acts of sexual assault

On remand, the court held that there was a genuine issue of material fact as to “whether defendants had constructive knowledge of” defendant-Babu-Rao’s (their employee) alleged prior sexual assaults “through the housekeepers’ actual knowledge.” Thus, the trial court correctly denied defendants’ summary disposition motion. Babu-Rao’s claimed “prior history at the current hotel or a previous hotel, or both, specifically included one or more sexual assaults. Further, the assaults against both plaintiffs involved physical touching of a sexual nature. The assaults were consistent with Babu-Rao’s history, so it follows that, if defendants had constructive knowledge of [his] prior sexual assault(s) of hotel guests, his assaults of plaintiffs were foreseeable.” To show constructive knowledge, plaintiffs relied, “in relevant part, on the statements of two housekeepers and their knowledge of Babu-Rao’s prior assaults as expressed to [plaintiff-]Cummings, which she described in her deposition[.]” The court noted that “the housekeepers allegedly told Cummings that they had knowledge that Babu-Rao had sexually assaulted, or perhaps harassed, other people. Moreover, while not directly stated in Cummings’s deposition testimony, it may reasonably be inferred that this conduct occurred against other female guests of the hotel, and that the housekeepers became aware of this conduct in the course of their employment. If the housekeepers’ statements were true, then the owner defendants, i.e., Jagu and Patel, arguably had constructive knowledge of Babu-Rao’s alleged prior acts.” The court concluded that to “be clear, while only knowledge of certain ‘material’ facts may be imputed to the employer, not all facts known by its employees,” it found “at this stage of the proceedings, . . . that the knowledge allegedly possessed by the housekeepers of sexual assault committed by Babu-Rao may fairly be imputed to defendants. That is, it is reasonable to infer that the housekeepers became aware of Babu-Rao’s prior acts during the housekeepers’ employment duties, and they had some unique obligation to remit that knowledge to their employer.” Thus, the court concluded that “given the housekeepers’ statements to Cummings, plaintiffs established a genuine issue of material fact regarding whether defendants had constructive knowledge of Babu Rao’s alleged prior sexual assaults before his sexual assault of” plaintiff-Turrentine. Affirmed.