Illinois Lawyer Blog

Dave Weiner commented on this story on the Huffington Post this a.m...

Nigel Haskett was working at a Little Rock, Arkansas McDonald's last summer when he saw an individual physically assaulting a woman in the restuarant. Mr. Haskett immediately rushed to the woman's aid and struggled with the scumbag who was assaulting her. Unfortunately, during the course of the struggle, Haskett was shot several times. As a result of his injuries, he has undergone multiple operations and incurred medical expenses of approximately $300,000.

Not surprisingly, Haskett went forward with a Workers' Compensation claim against the fast food giant. McDonald's however, has taken a very hard line. Ramsey, Krug, Farrell & Lensing, McDonald's insurer, has notified the Arkansas Workers' Compensation Commission that "...we have denied this claim in its entirety as it is our opinion that Mr. Haskett's injuries did not arise out of or within the course and scope of his employment."

In effect, McDonald's is asserting that they pay Haskett to flip burgers, make fries and pour drinks, NOT to intervene in altercations in the restuarant. Apparently, the corporate policy is to call the police and let them handle the situation. Okay, but a customer, in the restuarant, is being assaulted by a man with a gun. The police aren't around. With no regard for his own safety, Haskett jumps in, chases the bad guy outside and probably saves this woman's life.

You would think McDonald's would be thrilled that they have somebody like Haskett working for them. He risked his life to protect a customer. He's a hero. Most companies would love to have somebody like that on the payroll.

And McDonald's can't seriously be worried about the $300,000. They've sold lots of burgers over the years - $300,000 is chump change.

Let's hope this story gets some legs and McDonald's is shamed into doing the right thing.

Recently retained by a woman to investigate her allegations that she was sexually abused while a patient at a local health care facility. It is not unusual in these cases that the corporate defendant moves to dismiss, arguing the any improper conduct on the parts of its employee was "beyond the scope" of the employee's specific duties. [In fact, for a good example of an employer clinging to the "beyond the scope" see my February 23, 2009 post about McDonald's].

In order to get around that defense, plaintiffs frequently include negligent hiring counts in the complaint. An action for negligent hiring or retention of an employee requires the plaintiff to plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff's injury. The third element, proximate cause, is typically the battleground in these cases. When proceeding under a negligent hiring theory, the proximate cause of plaintiff's injury is the hiring or retention of the employee, NOT the wrongful act of the employee.

And the Courts of Illinois take a hard look at the proximate cause issue. In one case a cable installer sexually assaulted a customer in her home while on the job. The plaintiff filed suit and included a count for negligent hiring. The evidence revealed that an investigation into the employee's background would only have revealed that he had a history of traffic violations. The Court ruled that knowledge about the traffic offenses would not have put the employer on notice that the employee might assault a customer. In another case, a bus driver sexaully assaulted a student while driving that student home. The parents of the child filed suit against the bus company alleging negligent hiring. That case was dismissed as well. The evidence showed that an investigation into the employee's background would have only revealed a history of tardiness. The trial made a determination that there was logical relationship between that fact and the ultimate assault.

The case law seems to suggest that to prove the proximate cause element, some key facts will be necessary. First, one must show that the employee, prior to the employment had engaged in improper or violent acts. In addition, the plaintiff should plan on showing that the employee then engaged in similar acts while employed. Finally, the plaintiff should be prepared to demonstrate that the employer could have learned of the employee's violent propensities if a proper investigation had been undertaken PRIOR to the employment. Not exactly an easy burden.

A federal lawsuit filed after the death of a young man at Cook County jail is raising a number of questions about how that facility is run. John Lambert[pictured below] was incarcerated in Cook County jail in June of 2007. Lambert had previously had some run-ins with law enforcement agencies, but they were all relatively minor. He was placed in a maximum security division of the jail. Lambert's cellmate, David Jamison, had been in incarcerated for years, awaiting retrial of a rape conviction that had been overturned. Lambert was found unconscious in his cell with massive head trauma on June 26, 2007. He lingered for 12 days in the hospital and then died. A pathologist concluded that he had been beaten to death. Just days before the murder, other prisoners had observed Lambert and Jamison arguing. Given those facts, seems pretty clear that Jamison would be arrested and charged with murder. Nope.

In the fall of 2008, a Chicago Tribune article written by Gary Marx criticized the handling of the investigation into Lambert's death. After the article appeared prosecutors re-opened the case. Finally, on Tuesday, February 11, 2009, Jamison was charged with the murder.

Lambert's parents have filed a federal lawsuit against Sheriff Tom Dart and Cook County jail officials. The complaint alleges that paramedics failed to immediately respond to calls for help after Lambert was found in his cell. The complaint alleges that 90 minutes passed before Lambert was taken to the hospital and underwent surgery. The Lamberts are alleging that prompt action may have saved their son's life. The Lamberts have also raised questions about why their son, a non-violent petty crime offender, was incarcerated with violent felons.

Jamison has denied any involvment, and gave a statement to investigators that Lambert was injured when he fell out of bed. An inmate with a cell near Jamison's provided a statement that Jamison later boasted that he "...punched Lambert in the back of the head...and beat his brains in.."

Lambert's death was just one of a number of examples in a 2008 Justice Department report that was critical of the level of violence at Cook County jail.