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Court upholds summary disposition of child's claim against camp where counselor abused 7 year-old

Kristen Smith filed suit on behalf of her daughter against the Bronson Athletic Club and related people and entities, arguing that the Club should be held accountable for a counselor's sexual abuse of the seven year old.  The lower court granted summary disposition, essentially holding that pursuant to Michigan Supreme Court recent precedent, an employer is not liable for an employee's criminal act.  Ms. Smith appealed, arguing that by statute, the Club was subject to the duties imposed by the Child Care Organizations Act, as a child caring institution, thereby subject to the licensing rules and regulations imposed by that act.  Smith argued that if the "camp" had complied with the law and properly trained its employees, the 17 year-old counselor who abused the minor plaintiff would have been recognized as an "at risk" person and would never have been left alone with a child.  She presented two qualified expert witnesses to support this claim.

The two-judge majority of the Court of Appeals panel that heard the appeal rejected this analysis in its entirety.  Although the "camp" had not complied with statutory requirements of a child care institution, the majority ruled that this criminal act was not foreseeable under any factual analysis.  The majority cited recent Michigan Supreme Court precedent limiting any employer responsibility for ultra vires [acts outside one's job duties], or criminal acts of an employee, to situations where the illegal conduct was clearly foreseeable.  They rejected the argument that where expert opinion testimony was supplied showing that criminal or sexual misbehavior should have been foreseen, the ultimate decision should be left to jurors.

Thompson O’Neil, P.C.
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