Federal Court Allows Negligence Claim Against Retailer Under Restatement § 344 for Independent Contractor’s Assault

In their complaint, the plaintiffs raised negligence claims against a retail store based upon the alleged sexual assault and battery of a minor by a former employee of the store’s independent contractor. The plaintiffs alleged that the store owed the minor a duty under Section 344 of the Restatement (Second) of Torts.

The store filed a motion to dismiss, arguing that the plaintiffs failed to plausibly allege that the store had a duty to protect the minor from the alleged sexual assault and battery by an independent contractor since the store had no right of control over the actions of the independent contractor.

Relying upon Pennsylvania law, the court noted, “Section 344 does not impose a duty on landowners to prevent all criminal activity or intentional torts that occur on their land.” The court reasoned that “[instead], [Section] 344 only imposes liability when a landowner does not ‘take reasonable precaution against that which might be reasonably anticipated.’” (Original emphasis).

The court held that the plaintiffs had plausibly alleged in their complaint that the store had a duty to exercise reasonable care to protect and warn the minor from harm resulting from the intentional and/or negligent actions of the independent contractor. The court also held that the plaintiffs had alleged that the store knew or should have known that the independent contractor’s sexual assault and battery of the minor was reasonably foreseeable based upon allegations of prior sexual assault and battery committed two weeks prior to the at-issue conduct. As such, the store’s motion to dismiss was denied.