By Kathleen Kapusta, J.D. Despite the “indisputably despicable” comments about a customer posted on Facebook by a Hertz employee—which made light of violence, used a racist term, and ridiculed his sexual orientation—and a supervisor’s knowledge of a prior post, a federal district court in Hawaii found the customer failed to show the company foresaw or should have foreseen the danger posed by the employee and should have been more closely supervising his Facebook use or should have fired him earlier. Accordingly, the court granted summary judgment against his negligent supervision and retention claims. His negligent training claim failed as well (Howard v. Hertz Corp., January 25, 2016, Mollway, S.). The posts. After the customer patronized Hertz’s Maui Airport location, the employee allegedly posted on his Facebook page: “I seen Maurice’s bougie ass walking kahului beach road . . . ni**a please!” He also stated that the customer was “a broke ass faka who act like he get planny money,” prompting a coworker to post “run that faka over!!! lol.” The employee then replied, “. . . i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.” He further posted “now he knows we got Mercedes, he’s gunna drive those. it’s too bad his CC declines all the time.” Upon learning of the posts, the customer complained to the employee’s supervisor who found them offensive and inappropriate. The supervisor had previously been notified several years earlier about a comment the employee had posted on Facebook that made light of her after she almost walked into a tree. The employee and several coworkers who participated in the customer posts were all fired or resigned. Alleging that he suffered post-traumatic stress disorder as a result of the Facebook posts, that he was forced to sell his business, and that he was financially damaged prior to selling his business because he lost many customers as a result of the post regarding his credit card, the customer sued for, among other things, negligent supervision, retention, and training. Duty of care? The customer argued that Hertz owed him and other customers a duty of care to prevent the employee from posting harmful social media content at work. While he asserted that the supervisor was aware of the employee’s prior “nasty and demeaning” post about another customer, the supervisor disputed this and there was no evidence in support of his contention. Nor was it reasonable to infer that she knew about the prior post just because other employees did, said the court, noting that the coworkers were his Facebook friends and had direct access to his posts while the supervisor had no Facebook account of her own. Also rejected was the customer’s assertion that the harm he suffered was foreseeable based on the supervisor’s knowledge of the prior post about her. She considered that post to be “fairly innocuous,” and she counseled the employee at the time not to post anything on Facebook regarding Hertz. “However imprudent the prior post may have been,” its content gives no indication that the employee would later make a racist, homophobic, or threatening post about a customer, or that he would post financial nonpublic information about him, said the court. Handbook. And while Hertz had a handbook that addressed safeguarding customer information, the court pointed out that the law does not impose strict liability on an employer every time an employee steps out of line. Hertz’s acknowledgment of possible dangers in its handbook did not suffice by itself to establish a duty of care running from it to the customer. It is reasonable and proper for employers to warn against possibilities, said the court, finding nothing in Hawaii law that equates the recognition of possibilities, without more, with the establishment of a duty. Thus, Hertz was entitled to summary judgment on the customer’s negligent hiring and retention claims. Negligent training. Because Hawaii appellate law has not explicitly defined the contours of a negligent training claim, the court turned to other jurisdictions holding that an employer has a duty to train an employee when a particular job task poses a foreseeable risk of harm if performed without adequate training. These cases make it clear that a plaintiff may not assert that an employer has a general duty to train its employees, the court noted, finding that the customer’s claim that Hertz had a duty to properly train its employees to conduct themselves in a lawful manner in their interactions with their customers and the public failed to identify any specific aspect of the employee’s or supervisor’s job that posed a risk of danger to customers as a result of its failure to train. The customer also argued that Hertz had a contractual duty to train based on a letter written by the company’s CEO stating that Hertz’s commitment to its employees was to offer periodic training so that they would better understand the handbook’s requirements. While he contended that he was a third-party beneficiary of this purported contract, thereby transforming the alleged contractual duty between employer and employee into an independent tort duty running to him, the court found that he ignored the distinction between tort and contract, which have differing purposes that give rise to differing duties. Even if he established that Hertz owed its employees a contractual duty to train, the court found that this did not translate into a tort duty to train that flowed to him. Finally, even if Hertz was under a duty to train the employee and others to prevent the harm allegedly suffered by the customer, there was no evidence that the duty was breached. According to the supervisor, she previously told the employee not to post anything related to Hertz on Facebook, and he told her he understood and would not post anything in the future. The customer made no attempt to describe what additional training Hertz should have provided.
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