Cussing Out Your Employee May Get You Sued By… OSHA?? – continued from page 22


physically threatening gestures, in addition to withholding the employee‘s paycheck. OSHA‘s subsequent investigation found merit to the employee‘s complaint and they are seeking back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, they are seeking to have the employee‘s personnel records expunged with respect to the matters at issue in this case and to bar the employer against future violations of the OSH Act. This lawsuit indicates that supervisors had better think twice before going off on employees.


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DECISIONPOINT THE SITUATION (continued from page 1)


At some point during the Game, plaintiff and her Game-partner met up with two adult staff members. Her partner and one of the staff members then left, leaving Plaintiff alone with the other staff member. According to the plaintiff, once they were alone, the staff member kissed her, pushed and held her down and had sexual intercourse with her without her consent.


Months later, when defendants learned of the allegation, they confronted the staff member who initially denied the encounter then later claimed it to have been consensual.


Plaintiff and her father filed suit against defendants, asserting claims of negligence based upon breach of the duty of care owed to plaintiff, failure to maintain a safe environment for the late-night Game activity, and negligent training and supervision of the staff member/counsel alleged to have committed the assault. The lower North Carolina state court, Forsyth County Superior Court, entered an order granting summary judgment in favor of defendants.


THE DECISION


The North Carolina Court of Appeals affirmed the lower court‘s dismissal of the claim against defendants. The Court of Appeals agreed with plaintiffs that a duty of care was owed by defendants, however, the Court held that the duty was one of ordinary prudence--and that duty was not breached.


The Court held that the defendants must exercise the same standard of care that a person of ordinary prudence, charged with the duty of supervising campers, would exercise under the same circumstances. Here, the Court cited the defendants‘ restriction of the game to senior high campers and requirement of a buddy/partner system to be sufficient to fulfill its duty of care to this particular camper. Moreover, these safeguards were deemed sufficient to fulfill defendants‘ duty to provide a safe environment during the game.


Continued on page 24


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