Last week attorneys for Creative Actors Agency (CAA), Miramax and Disney delivered oral argument in their appeal to try to prevent actor Julia Ormond’s negligence claims from moving forward in New York State Court. Oral argument was recorded and can be found here.

In her lawsuit (Index No. 952107 / 2023), Ormond alleged that Harvey Weinstein sexually assaulted her in her apartment and that Defendants are liable for the assault. As Littler previously reported, Ormond’s complaint sought to plead negligent supervision and negligent retention against Miramax and Disney, and negligence and breach of fiduciary duty against her talent agency, CAA, in an attempt to hold them liable. Ormond alleged that Miramax and Disney employed Weinstein. None of the corporate defendants employed Ormond, but Ormond’s attorney advanced claims against them under theories generally brought by employees.

The companies moved to dismiss Ormond’s claims, arguing principally that her negligence theory does not create a duty of care to her that is normally reserved for employees. The companies argued that they had no duty of care to Ormond, that in any event the assault against her was not foreseeable, and further that they had no control over Weinstein’s conduct outside of work with a non-employee. However, the lower court denied the companies’ motions to dismiss and permitted the claims to move forward past the pleading stage. The companies appealed and the appeals are pending.

This case reflects a growing effort by plaintiffs’ counsel to create a tort-based remedy for sex harassment where there is no remedy under employment discrimination laws because the plaintiff was not an employee of the corporate defendant. Ormond’s only option is to pursue a theory of negligence and a claim based on the company’s relationship with the accused.

We all know the basic elements of negligence – 1) duty of care, 2) breach of the duty, and 3) injury proximately resulting from the breach. Despite the attenuated connections, Ormond alleges that the companies had a duty to protect her from Weinstein, and that the companies had enough information about his prior bad acts to be on notice that he might engage in criminal conduct and that they should have controlled him and warned her. The entertainment giants are not walking away without a legal fight over the limits of tort liability in New York.  

Ormond’s challenge will be establishing the three elements to show negligence against these non-employers. The majority of courts have found that to hold a corporate defendant liable for conduct of this nature, there must be an employment relationship. Further, the plaintiff must show that the defendant knew or should have known of a propensity for the employee to engage in such conduct. Additionally, generally, the conduct must have occurred on the employer’s premises or in connection with employment activities.   

Attempts to hold employers legally responsible for the off-duty conduct of its employees, disconnected from its business purpose, are rarely successful. Based on the lower court’s decision, this case suggests that the scope of New York negligence-based claims is expanding. If the decision is not reversed, this will likely lead to more cases filed against employers for the actions of employees against third parties even when there is little connection to the employer under traditional theories of tort liability and employment law.

Next Steps for Employers

This case is another reminder of the importance of establishing policies requiring appropriate workplace conduct on premises and in all interactions with coworkers, customers, clients, and vendors with whom employees interact as part of their work duties. It also reinforces the need to ensure employees are regularly trained of these work rules and employee interactions are appropriately monitored and, most importantly, appropriate action is taken if management becomes aware of any inappropriate conduct. Finally, if the employer learns, for example, of employee misconduct that could have ramifications for the workplace, it should investigate and determine its rights and responsibilities.