A 3-2 split decision wrestles with where employer supervision duties end
The production company behind The Cosby Show cannot be sued for allegedly failing to supervise its star.
That was the ruling from New York's Appellate Division, First Department, which on October 1 dismissed a negligent hiring, retention, and supervision claim against The Carsey-Werner Company. The plaintiff argued the company bore responsibility for alleged sexual assaults by Bill Cosby because he used the show's studio to gain her trust.
According to the complaint, the plaintiff met Cosby around 1987 at his invitation on set, where he told her the show wanted to hire her for a special episode. From there, the complaint alleges, Cosby on "multiple occasions" between 1987 and 1990 gave her drinks that caused her to pass out. She later came to understand he had drugged the beverages and "sexually assaulted" her while unconscious.
The question for the court was not whether any of that happened. It was whether one studio visit - where no assault allegedly took place - was enough to pin liability on the employer.
New York's negligent supervision doctrine requires three things: that the employer knew about the employee's harmful tendencies, could control the employee, and that the employee used employer premises or resources to commit the harm. The court said element three was missing.
The plaintiff pointed to the studio visit as the start of Cosby's "grooming process." The court was not persuaded. Using employer property to "impress and possibly bait" someone, it held, was not the same as using it to commit an independently tortious act.
The decision followed the court's recent ruling in B.B. v Cosby (245 AD3d 498), which dismissed a similar claim where the plaintiff never visited the studio. The two cases could not be "meaningfully distinguished," the court said. What mattered was "the nature of those visits," not the number.
Not everyone on the bench agreed. Two of five justices dissented, arguing Cosby's use of the set and a promised role to gain the plaintiff's trust was enough. They pointed to the Court of Appeals' Moore decision, where an employee who used company email and letterhead to defraud an investor triggered employer liability - without the victim ever visiting the premises.
For HR teams, the 3-2 split leaves a practical question open: when does an employee trading on the company's name cross into employer liability? That may depend on whether the Court of Appeals weighs in.
The ruling addressed only the supervision claim against the production company. The underlying allegations against Cosby have not been adjudicated.
