Premises Liability Are companys just free to hire felons?

[CBEV43]

My best friend joined the Bally Total Fitness in Alexandria, VA on October 2008. She needed help with her fitness and assumed she bought the second best package they had. Along with the 3 year contract she was suckered into came a free personal training session. The FREE personal training session was with Eyaya Fetene Zeleke. It went great and he was a very knowledgeable trainer according to her. She didn't buy the personal training package that day but was considering it. A few weeks after joining this animal contacted my friend and told her he had a cancellation from one of his clients and asked if she wanted to take advantage of another personal training session. My friend agreed. That day she was brutally raped and sodomize by this monster. He was recently convicted and sentenced to 30 years on March 5, 2009. Since than my best friends life has been in ruins. Isn't this company supposed to run criminal background checks? What are the policies of hiring felons?


Thank you
CB


Below is the picture of this monster.

 

[cbg]

With limited state and industry specific exceptions, the law does not require the employer to run criminal background checks. They may if they wish; they may omit them if they wish. Nor does the law prohibt an employer from hiring a felon, again with state and industry specific exceptions. In fact, in some states an employer is prohibited from refusing to hire a felon BECAUSE of his criminal record unless the job they are applying for has a direct relationship to whatever he was convicted of.

It's horrible what happened to your friend. I'm glad the person responsible was convicted and I hope she is able to get the help she needs to move on. But the employer's failure to run a criminal background check does not violate the law.

 

[CBEV43]

When she was raped he was still in the scope of his employment. Is the company at all liable?

This is his sex offender page:
http://sex-offender.vsp.virginia.gov/sor/offenderDetails.html?regId=26277

 

[cbg]

If I am reading this correctly, it does not appear that he had a criminal history prior to this. So even if the company had run a criminal background check (and perhaps they did) it would have told them nothing.

Unless there is reason to believe that someone, say in upper management, knew what he was planning to do and took no action to stop it, it's unlikely that the company could be held liable. She is, of course, free to discuss her options with an attorney.

 

[Green_Hornet]

Yes your friend may very well have a suite against the company,and I strongly suggest she talk to personal injury lawyer. This case falls under a vicarious liability tort.


Vicarious liability exists when one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For example, a parent sometimes can be vicariously liable for the harmful acts of their child and an employer sometimes can be vicariously liable for the acts of their employee.

 

[CBEV43]

He was a convicted felon before they hired him. Either way, thank you very much for the advice. I will let her know.

 

[jacksgal]

Why would it be unlawful to hire a felon? Why would the "company" be libel? They did not do the crime. If this is so then no criminal would ever be hired and most would return to crime or even worst crimes. Not saying this was not bad. Just looking at this with logic

 

[Green_Hornet]

He was a convicted felon before they hired him. Either way, thank you very much for the advice. I will let her know.

Bailly is a public company with deep pockets. Gyms all over the world, this women was savagely raped. There is no way an attorney wont listen to this. The bigger the firm the better in my view large firms have large overheads and can take on big cases. The small ones are to quick to settle. This is a tort case with common law remidies.

 

[Green_Hornet]

Why would it be unlawful to hire a felon? Why would the "company" be libel? They did not do the crime. If this is so then no criminal would ever be hired and most would return to crime or even worst crimes. Not saying this was not bad. Just looking at this with logic

It has nothing to do with a hiring a felon, the employer can hire a rapist but once informed he is a rapist must perform due diligence in order to protect the patrons. The employer owes due diligence in hiring as well. Did the employer do so? Thats for a jury to determine. If an attorney sees cause to file complaint.

An employer is vicariously liable for the acts of an employee as long as the employee's acts are in the scope of employment. So when an employee acts to further the employer's business, the employer will be vicariously liable (even for intentional torts). However, if the employee commits an intentional tort for purely personal reasons unrelated to the employment, most jurisdictions will not hold an employer vicariously liable. An attorney should be consulted either way.

Let me elaborate some more. The employer is someone who legally owes a duty of special care and protection, such as a common carrier (airplane, bus, passenger train), motel owner, or a hospital, the employer is usually liable to the customer or patient even if the employee acts for purely personal reasons. The theory underlying such liability is that employers should not hire dangerous people and expose the public to a risk while the employee is under the employer's supervision.

The employer may also be liable for his own actions, such as in hiring a diagnosed psychopath to be a trainer for women. An employer, therefore, can be liable for his own carelessness and as a principal whose employee is an agent.

These rules do not allow the employee to evade responsibility for harm he has caused. Injured parties generally sue both the employee and employer, but because the employee usually is unable to afford to pay the amount of damages awarded in a lawsuit, the employer is the party who is more likely to pay.

The crucial question in a respondeat superior claim is whether the employee was acting within the scope of employment: Was the employee involved in some activity related to the job? In 1991 the Supreme Court of Virginia decided a case, Sayles v. Piccadilly Cafeterias, Inc.,242 Va. 328, 410 S.E.2d 632, An employer is liable for harm done by the employee within the scope of employment, whether the act was accidental or reckless. The employer is even responsible for intentional wrongs if they are committed, at least in part, on the employer's behalf.

 

[Green_Hornet]

He was a convicted felon before they hired him. Either way, thank you very much for the advice. I will let her know.

In that case the employer could have easily done due diligence by merely checking the state site you clicked. That does not require any special document signed. One question did the rape occur on the employers premises?

 

[CBEV43]

No, the rape did not occure at the gyms premises. Her rapist had a cancellation that day and offered her that opening he had. He adviced her that they did not have to workout at the gym and could train her somewhere convenient to her since it was last mintue. My best friend had a (female) personal trainer before who used to pick her up at her home and train her outside the gym, so she didn't not see this as uncommon or unual practice. That is when she got attacked. He was in his work uniform. When he was arrested, they picked him up at the gym.

BTW: His prior felony convictions was not sex offense related.

 

[Green_Hornet]

See an attorney anyway.

 

[cbg]

If he had a record of sexual offenses prior to his hiring by the gym (which does not show on the sheet you attached) then yes, the gym might possibily have some liability for negligent hiring.

If he had a criminal record for non-sexual offenses, then the likelihood of the company's liabilty goes way down.

 

[Green_Hornet]

Tort damages works on a percentage of fault basis, the employer does not have to be 100% at fault for plaintiff to collect damages. So if a jury finds the the gym only 10% at fault. That is still substantial on an injury this catastrophic.

 

[cbg]

That's still a lot of if's.

With all respect due, I would like to point out that I referred her to an attorney even before you did. Obviously if I thought there was NO chance the company would be found liable, I would not have done so. You clearly think there is a slam dunk. I am not convinced it's that clear cut UNLESS previous convictions were for sexual offenses, which if you look at the attachment provided does not appear to be the case.

Simply being employed by the gym does not automatically make the gym liable. The fact that he claimed to "have a cancellation" does not automatically make this within the scope of employment. I doubt that the gym management suggested that he call the OP's friend specifically and invite her to come in.

But OF COURSE on something this horrific she should explore all options and OF COURSE there is a chance that a judge or jury will find some liability. I just don't think it's as cut and dried a liabilty as you appear to think.

 

[Green_Hornet]

You clearly think there is a slam dunk. I am not convinced it's that clear cut UNLESS previous convictions were for sexual offenses, which if you look at the attachment provided does not appear to be the case.

What are you talking about? Where was the bold written?

What I did (if you read what I wrote) was explain the tort of vicarious liability to the poster. Never said anything about a slam dunk or if a personal injury lawyer would even accept this case.

 

[CBEV43]

Is there any cases similar to this in Virginia that have won? Besides the one all ready mentioned. What is Virginia Law on these types of cases? Is it true that if they find the plantiff even 1% responsible, that she would lose the case? Just curious how it works.

 

[Green_Hornet]

I'll look into some cases but there appears to be some glitch in your thread. When I click it via E-mail the whole thread is there however when I return there are some missing posts. To answer your question in tort law if the employer was found 1% negligent he would be responsible for 1% of damages.


For example say a jury figures the damages are $1,000,000.00 the plaintiff would receive $10,000.00 if the employer was found 1% at fault this is an extreme over simplification because a jury can award all kinds of damages.

 

[Michael Wechsler]

A lot of good posts here and I do know that cbg happens to know quite a good deal about employment law and hiring practices. But what's the bottom line here? There are a lot of maybes. Hornet has a good point - typically it is good to speak to a lawyer regardless of whether you think you may or may not have a case. Often they are able to help you understand and appreciate the facts.

Absent specific restrictions, there is nothing wrong with hiring a felon. In fact, society and the justice system feels strongly (at least in theory) that once you've paid your debt to society you should have the opportunity to go about life as a new person and get a second chance. There are jobs which may restrict individuals who have committed certain types of felonies and some types of services also owe certain duties of reasonable care to their clients. But this isn't a babysitting job - it's personal training in a public gym. Unless the defendant had a prior history known or that should be known to Bally's what duty of care have they breached?

The problem with answering this question is that we're missing critical facts. Will Bally's offer her a settlement? I don't know. What we do know is that the injury took place at a place other than the premises of Bally's. This immediately makes it a much more difficult case since it doesn't seem that such a situation is within the scope of employment. I'll assume that this person told the victim that he can perform personal training at her home or somewhere else. Should that make the company liable? Is it foreseeable? I'd argue - no way - unless Bally's has at home personal trainers and the victim knew this was the case. Vicarious liability? I'm not sure this act fell within the scope of employment even though it is related. What if the trainer told her that it would be a good idea to go on a camping trip and she obliged - is that still within the scope of employment?

This is a great deal of speculation thus far. Even if Bally's knew the defendant had committed prior sex crimes, would it be logical to hold them liable for a crime that takes place off the premises of the gym and outside of their purview. Did the defendant have a number of prior warnings given to him about how he handled clients? I don't know. Maybe an attorney might invest time to determine whether Bally's was prior warned. Difficult to make this case. We really need to know more of the crucial facts which determine what and how the circumstances were to lead to the unfortunate incident. I hope your friend is recovering...

 

[Green_Hornet]

It is a good thread L.P it is a shame about the victim. It does raise challenging legal issues.

L.P I seem to have run into some user glitches if you have time I would appreciate if you could check them out. I have no problem reading this entire thread when I follow the E-mail link however. If when using quick links> Todays posts. I loose posts #13-#14-#15. If I click page 1 (of this thread there is no page 2 but there is a page 2 on the (Todays posts) menu.

That said I'll be back later with cases the poster requested. Poster by all means contact an attorney, its one thing to talk in abstract terms, but you need solid advice no matter what cases I post later say or don't say.