March 2020 - Parks & Recreation - 35

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" The Rideouts failed to allege any facts to establish that Frick's conduct was foreseeable, therefore
subjecting the City to a direct liability claim based
upon the City's failure to protect its employees or to
inspect for hazardous conditions " :
The Rideouts did not offer evidence that the Aquatic Center management knew or should have known of
Frick's dangerous propensity. The only known issue as to
Frick's conduct during his employment was a single patron complaining that he would " test " jokes during water
aerobics class. There is nothing in the record to suggest the
jokes made in class were sexual in nature.
According to the appeals court, there was, however, undisputed evidence introduced that " the same
year that Frick's conduct was discovered, the Aquatic
Center had an issue with some female staff members'
underwear being stolen from their lockers and some
having strange suggestive messages and fixtures attached to them. " In addition, some other staff members reported similar findings as to their underwear
left inside their lockers. The appeals court, however,
found the City had " investigated this incident and determined a janitorial staff member from another department was responsible. "
To establish that Frick's acts should have been foreseeable to the City, the appeals court noted that the
Rideouts also had relied on the fact that " Frick placed
a lock on his staff locker to accomplish his surreptitious recordings " and " Frick was the only employee
to use a lock. " In the opinion of the appeals court,
without more evidence, Frick's mere use of a lock on
a locker was not indicative of his making " surreptitious recording. " On the contrary, the court found
Frick's " utilization of a lock on a locker is merely evidence of seeking to protect the contents from theft or
other disturbance, particularly in light of the issues
with the janitor removing or affixing messages to undergarments. "
In addition to Frick's use of a lock for his locker,
the Rideouts claimed " the City should have known of
Frick's dangerousness, " because statements from two
Aquatic Center employees indicated they had seen
Frick with a cellphone at work. In the opinion of the
appeals court, Frick's cellphone did not " establish any
dispute of material fact regarding the foreseeability of
Frick's actions. " As characterized by the appeals court,
mere evidence of an individual " having a cellphone in
one's possession at work is not evidence of that per-

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March 2020 - Parks & Recreation

Table of Contents for the Digital Edition of March 2020 - Parks & Recreation