Employees may be witnesses of workplace robbery, shoplifting, or other crimes. Employers are obviously concerned about loss control from such crimes while protecting the employees' safety. In a case decided by an Ohio appellate court, Adams v. K-Mart Corporation, the Ohio court addressed a loss control manager's claim against his employer K-Mart for failure to come to his aid when he was allegedly attacked by a shoplifter. Specifically, Mr. Adams claimed that both K-Mart and the store management had an obligation to come to his aid and to promptly contact the police when his attempt to restrain the alleged juvenile shoplifter resulted in his being violently assaulted by that alleged shoplifter.

While Mr. Adams received worker's compensation for these work-related injuries, he also sued in court for additional damages under other theories including breach of contract with his employer under the employee handbook. In ruling in favor of  K-Mart, the Court recognized that the disclaimer language in the Operating Policies Manual clearly stated that the material therein did not create any contract between the employer and the employee. Mr. Adams also attempted to get around the worker's compensation bar against suing an employer and his co-employees by arguing that their failure to act amounted to an intentional tort. The Court held that under the Ohio law which applied to the case, there were certain narrow circumstances under which an intentional tort claim can be raised against the employer. In New Hampshire, under R.S.A. 281-A:8(I), intentional tort claims against employers may not survive the worker's compensation bar but intentional tort claims are permitted against any officer, director, agent, servant, or employee acting on behalf of the employer or the employer's insurance carrier or any association or group providing self insurance to a number of employers.

In granting K-Mart's Motion for Summary Judgment, the Court specifically found that K-Mart had a loss control directive in their Loss Prevention Handbook which stated that a detention of a shoplifting suspect should be aborted if the suspect "becomes violent and cannot be controlled by a holding force." The Court found that Mr. Adams did not allege that the store manager nor anyone else from K-Mart forced or encouraged him to ignore the policy and to persist in a struggle with the juvenile once it became clear that the minimum force recommended by the company would be insufficient to detain that juvenile. Mr. Adams simply alleged that the store manager did nothing to stop the assault. The Court noted that Mr. Adams' inability to extricate himself from the altercation did not establish that K-Mart required him to continue.

The above case was an unpublished decision in Ohio which limits its ability to be used as legal precedent in future cases. However a point clearly illustrated in this case is that employers should not instruct or encourage their regular employees to put their own personal safety at risk in an attempt to detain a suspect, or to abort the attempt, of criminal activity. Such activities should be left to trained professionals such as law enforcement officials.

Employers should also note that under the New Hampshire employee-at-will doctrine, a jury decides what constitutes a public policy exception to the general rule that an employer may fire an employee without or without cause. For example, if an employer was to require a convenience store clerk to prevent an armed robbery, there is a good chance that, upon the employee's refusal to do so and his subsequent termination of employment, the employee may have a wrongful termination claim against the employer arguing that it is against public policy to require a store clerk to put their personal safety at risk for the employer's financial interests. Furthermore, employees detaining shoplifters must be trained so as to limit the employer's and employee's exposure to false imprisonment civil claims for monetary damages.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.