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“Under the facts of this unfortunate case,” a Florida appeals judge wrote for a unanimous three-judge panel, “we hold that an employer does not have a duty to warn one employee about a second employee’s criminal background, where the warning pertains to the employees’ personal relationship outside of work.” For that reason, a panel of the state’s 4th District Court of Appeal in K.M., a minor, by and through her parent D.M. v. Publix Supermarkets Inc., 04-502, denied K.M.’s appeal of Broward County Circuit Judge Leroy H. Moe’s dismissal with prejudice of her negligence suit against Publix. Appeals Judge Robert M. Gross wrote for the panel. When K.M. was 7 years old, her mother worked in the business office of a Broward County Publix store with store manager David Moses. Since her schedule required her to work a split shift, in the early morning and late afternoon, she arranged to leave her daughter during the day at the home of a fellow Publix employee, Robert Woolard. Because Moses had been contacted by the state Department of Corrections, he knew that Woolard was on parole from a conviction for attempted sexual battery on a minor under 12. But he did not inform K.M.’s mother of this fact, and during the three months K.M. was in Woolard’s care, she was sexually abused on at least two occasions. K.M.’s father filed suit against Publix, alleging that Moses should have known Woolard was unfit to provide child care and that since all of the actors in the case were Publix employees, the company was also liable for K.M.’s injuries. Judge Moe in Fort Lauderdale granted Publix’s motion to dismiss the complaint with prejudice, holding that Publix had no duty to K.M., common law or otherwise, and that “the employees in this case have rights to engage in relationships and to be left alone that are guaranteed by the Florida Constitution and the United States Constitution.” K.M.’s father argued in the appeal that the situation was covered by Section 302B of the Restatement (Second) of Torts, which provides that “an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of a third party which is intended to cause harm.” “Florida recognizes the special relationship exception to the general rule of non-liability for third party misconduct,” the 4th DCA panel acknowledged. “The existence of a special relationship gives rise to a duty to control the conduct of third persons so as to prevent them from harming others.” But the 4th DCA found that such a duty applies in the case of relationships such as parent and child or employer and employee in the workplace. “This section does not affect K.M.’s case because the criminal acts occurred off Publix’s premises and did not involve its property.” If liability were imposed on employers for the acts of their workers when off the job, the 4th DCA said, the courts would be faced with the task of establishing some boundaries of liability. Otherwise an employer would be liable for any acts committed by employees under any circumstances — “an intolerable and unfair burden.” Without a special relationship, the panel found, the case comes under the general rule “that the fact that a person realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose a duty to take such action,” For that reason, the appellate court concluded, Publix had no duty with respect to its employees’ away-from-work child care decisions.

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