In Judy Doe v. Sake Shoprites, New Jersey’s Appellate Division analyzed whether the defendant supermarket was vicariously liable for negligently retaining employees who sexually harassed a young girl at the supermarket.

Six-year old Judy Doe and her mother entered a supermarket in the late evening. Unknown to Judy and her mother, supermarket employee J.B. followed them and watched Judy’s movements. When Judy was alone, J.B. approached her , left her shirt, and photographed Judy’s legs and stomach. Judy’s mother soon found Judy crying and shaking. Subsequently, Judy’s mother reported J.B.’s actions to supermarket crew chief A.Z. and the supermarket’s manager. The manager then suspended J.B. because he was “warned earlier about taking pictures of customers.” The supermarket contacted the police, who executed a search warrant of J.B.’s home and discovered several photos of other young female customers.

Plaintiff later sued the supermarket alleging negligent hiring and retention. Plaintiffs opposed the supermarket’s motion for summary judgment, arguing that the supermarket was liable—under a theory of vicarious liability—for the intentional acts of J.B. Specifically, plaintiff argued that the supermarket negligently retained J.B. despite notice that J.B. previously took photographs of customers, and that this known behavior would foreseeably cause customer harm.

The Appellate Division was unpersuaded by plaintiff’s arguments, holding that the evidence of prior notice was insufficient to prove the supermarket was negligent in keeping J.B. employed as a member of its staff. The court found that “taking pictures of customers” was too speculative to prove the supermarket had knowledge that J.B. engaged in similar harmful behavior. Further, the court reasoned that the ages of the customers and the nature of the pictures were not specified in the manager’s statement. Although J.B. was previously warned about taking pictures of customers, the supermarket did not know where or when the photographs were taken, whether they were of young girls, or whether J.B. manipulated the clothing of any juvenile female to expose skin.

This case demonstrates that New Jersey courts require “competent evidential material” beyond mere speculation in order to find an employer vicariously liable for negligent retention of its employees. Such proof may turn on an employee’s employment history, the foreseeability of future wrongful conduct, and the nature of an employee’s past wrongful activity.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono if you would like more information.