March 2020 - Parks & Recreation - 36

L AW R EV I EW

would require " the employer have
knowledge of the dangerous tendencies of that particular employee. " In this particular instance,
the appeals court found: " The
purported evidence of video voyeurism at pools at best raises an
issue of a general danger within
the industry. " As characterized
by the appeals court, the exhibits
and expert testimony offered by
the Rideouts " would only support
general knowledge of the broad
concern of pool voyeurism. "
Such general knowledge of video voyeurism imputed to the City
would, therefore, be insufficient
to show the employer City in this
case, " knows or should know of
the necessity and opportunity
for exercising such control " over
Frick and his cellphone use to
have prevented video voyeurism.
son's intent to illegally record their
coworkers. " Further, equating simple possession of a cellphone in
the workplace with a hostile work
environment would, in the opinion
of the court, " result in untenable
consequences for employers across
a variety of industries and professional fields. "

" General concern within an
industry does not establish the
particularized dangerousness of
a speciﬁc employee. "
Voyeurism Risk at Pools
On appeal, the Rideouts further
argued: " the exhibits they submitted about the general issue of video voyeurism at swimming pools
raised an issue of material fact
as to whether the City was aware
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or should have been aware of the
possibility that Frick would engage
in such conduct. " These exhibits
included " a number of newspaper
articles from across the country
about incidents of video voyeurism. " In addition, the Rideouts offered the testimony of a purported
expert that discussed the risk of
voyeurism at pools. The appeals
court, however, rejected the notion
that the City knew or should have
known about Frick's misconduct
based upon such evidence, suggesting general concerns about video
voyeurism at swimming pools.
According to the appeals court:
" General concern within an industry does not establish the
particularized
dangerousness
of a specific employee. " On the
contrary, for an employer to be
liable under a claim of negligent
supervision, the appeals court

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General Criminality Danger
Unlike negligent supervision liability, which would require " the
employer have knowledge of the
dangerous tendencies of that particular employee, " the appeals
court noted that an employer
could still be liable for negligent
protection against a " general
danger " of criminal misconduct.
Specifically, the court found: An
employer owes a duty to an employee to make " reasonable provision against foreseeable dangers of criminal misconduct to
which the employment exposes
the employee. "
In this particular instance, however, the appeals court found no
breach of any duty to protect Ms.
Rideout against the crime of video
voyeurism because there was no evidence that " the City should have
foreseen Frick's conduct. "

March 2020 - Parks & Recreation

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