ORDER RE: DEFENDANT S MOTION FOR SUMMARY JUDGMENT

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1 DISTRICT COURT, ARAPAHOE COUNTY, COLORADO 7325 South Potomac Street Centennial, CO EFILED Document CO Arapahoe County District Court 18th JD Filing Date: Jul :55PM MDT Filing ID: Review Clerk: N/A Plaintiff: JANIS RAND v. Defendants: REZA SHANEHCHIAN, et al. COURT USE ONLY Case No.: 10CV1623 Div.: 309 ORDER RE: DEFENDANT S MOTION FOR SUMMARY JUDGMENT THIS MATTER comes before the Court on defendants Aurora Therapeutic Massage d/b/a Therapeutic Massage d/b/a Elements Therapeutic Massage s, Michele C. Merhib s and Shannon Barker s motion for summary judgment. For the following reasons, the motion for summary judgment is GRANTED. I. Undisputed Facts BACKGROUND Defendants Michele C. Merhib and Shannon Barker are the owners of Aurora Therapeutic Massage d/b/a Elements Therapeutic Massage ( Elements ), a massage studio. Defendant Reza Shanehchian was hired by Merhib and Barker as a massage therapist and was working at Elements during the events at issue in this case. Plaintiff Janis Rand received massages at Elements from September 1, 2008 through July 19, During that time, Shanehchian was Rand s masseur. According to the uncontested affidavit of Michele Merhib, prior to hiring Shanehchian as a massage therapist, Elements conducted an interview with Shanehchian and contacted at least four of his references. 1 Merhib Aff. 6. Elements also contacted 1 Rand did not file a response to the motion for summary judgment. A motion for summary judgment supported by an affidavit, to which no counteraffidavit is filed, establishes the absence of an issue of fact, and the court is entitled to accept the affidavit as true." McDaniels v. Laub, 186 P3d 86, 87 (Colo. App. 2008) (citing Witcher v. Canon City, 716 P.2d 445, 457 (Colo.1986)). Rand did not file a counteraffidavit in opposition to Merhib s affidavit. Therefore, the Court is entitled to accept the statements in Merhib s affidavit 1

2 the school where Shanehchian studied to be a masseur, the Denver School of Massage Therapy, which recommended him for the position. Id Beginning April 1, 2009, Elements required all its massage therapists, including Shanehchian, to register with the Colorado Office of Massage Therapist Registration ( COMTR ). As part of the registration process, Shanehchian was fingerprinted and a background check was completed. Id Shanehchian successfully registered as a massage therapist on April 1, Id. 13. Prior to July 19, 2009, Shanehchian had no prior criminal history of which Elements was aware, nor had Elements received any complaints about Shanehchian. Id II. Disputed Facts Rand alleges that on July 19, 2009, while performing massage services, Shanehchian committed an act of penetration on Rand by placing his finger and thumb inside Rand s vagina and stroking her inside. Complaint 18. Rand further alleges that after she instructed Shanehchian to stop, he removed his fingers from her vagina and began caressing Rand s breasts against her will. Id. 19. Rand avers that Elements, Merhib, and Barker knew or should have known that Shanehchian had a propensity to perform massage services negligently or in an offensive or harmful way. Id. 63. Rand asserts claims against Elements, Merhib, and Barker for negligent hiring, negligent retention, and negligent supervision. Id Elements, Merhib, and Barker ask the Court to enter summary judgment in their favor on Rand s negligent hiring, negligent retention, and negligent supervision claims. Elements, Merhib, and Barker assert that Rand has failed to present any evidence that they knew or should have known that Shanehchian had character or conduct issues that would pose a risk to clients either before or during his employment. See generally Mot. for Summ. J. Defendants Merhib and Baker also contend that under , C.R.S they cannot be held liable in their individual capacity for Rand s claims. Id., p. 9. Rand has not responded to defendants motion for summary judgment. STANDARD OF REVIEW Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits [submitted]... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See C.R.C.P. 56(c); Mehaffy, Rider, Windholz & Wilson v. Central Bank of Denver, 892 P.2d 230, 235 (Colo. 1995). In determining whether summary judgment is proper, the non-moving party is entitled to any favorable inferences that may reasonably be drawn from the facts. Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d 223, 226 (Colo. 2001). Further, all doubts arising from the facts presented must be resolved against the moving party. Id. as true and as establishing the absence of an issue of fact. 2

3 The party moving for summary judgment bears the initial burden of presenting the basis for a motion for summary judgment and of identifying those portions of the record that demonstrate the absence of any genuine issues of material fact or any triable issues of fact. Continental Airlines, Inc. v. Kennan, 731 P.2d 708, 712 (Colo. 1987); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988). Once this initial burden has been met, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. Keenan, 731 P.2d at 712. The nonmoving party must then set forth specific facts, through affidavits or other means to show that there is a genuine issue for trial, and may not rest upon the mere allegations or denials in the pleadings or simple argument. Burman v. Richmond Homes, 821 P.2d 913, 917 (Colo. App. 1991); Ginter v. Palmer & Co., 585 P.2d 583, 585 (Colo. 1978) (reliance upon allegations or denials in the pleadings is insufficient evidence against an affidavit affirmatively establishing that there are no triable issues of material fact). If the nonmoving party cannot muster sufficient evidence to establish that there is a triable issue of material fact, the moving party is entitled to summary judgment as a matter of law. Kennan, 731 P.2d at 712. In a case where a party moves for summary judgment on an issue on which he would not bear the burden of persuasion at trial, his initial burden of production may be satisfied by showing the court that there is an absence of evidence in the record to support the nonmoving party s case. Id. ANALYSIS I. Plaintiff s Negligent Hiring Claim In order to establish a claim for negligence, a plaintiff must establish the existence of a legal duty by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff, and a causal relationship between the defendant s breach and the plaintiff s injuries. Connes v. Molalla Transport Systems, 831 P.2d 1316, 1320 (Colo. 1992) (citations omitted). Thus, the first step in analyzing any negligence claim is to determine whether the defendant owed a legal duty to protect the plaintiff against injury. Id. The question of whether a legal duty exists is a question of law. Id. A duty of reasonable care arises where there is a foreseeable risk of injury to others from a defendant s failure to take protective action to prevent the injury. Id. The tort of negligent hiring recognizes that an employer has a legal duty to take reasonable care to prevent injury by an employee against a third person where the employer hired a person under circumstances antecedently giving the employer reason to believe that the person, by reason of some character attribute or prior conduct, would create an undue risk of harm to others in carrying out his employment responsibilities. Id. at 1321 (citing RESTATEMENT (SECOND) OF AGENCY 213, cmt. d). The scope of an employer s duty to exercise reasonable care in hiring a person depends largely on the degree of contact the employee will have with other persons while performing his employment responsibilities. Where the employment calls for minimum contact between the employee and other persons, there may be no reason for an employer to conduct any investigation of the applicant s background beyond obtaining past employment information and personal data during the initial interview. Connes, 831 P.2d 3

4 at Conversely, where an employee s responsibilities will require the employee to frequently and closely interact with third persons, an employer may be required to conduct a more extensive inquiry in the applicant s background than simply having the employee complete a job application and conducting an interview. Id. However, in the absence of circumstances antecedently giving the employer reason to believe that a job applicant... would constitute an undue risk of harm to members of the public with whom the applicant will be in frequent contact or to particular persons who stand in a special relationship to the employer and with whom the applicant will be in close contact, an employer s duty of reasonable care does not extend to searching for and reviewing official records of an applicant s criminal history. Id. at It is undisputed that as a massage therapist Shanehchian s employment responsibilities required him to have frequent and close contact with Element s clients. Therefore, Elements had a duty to conduct a more extensive inquiry into Shanehchian s background than simply reviewing his job application and conducting an interview. However, the Court finds as a matter of law that Elements satisfied that duty. Elements not only conducted an in person interview with Shanehchian, but also contacted four of his references and contacted the massage school where he had been trained. All the references contacted by Elements recommended Shanehchian as a massage therapist. Further, beginning April 1, 2009, Elements required as a condition of employment that Shanehchian register with the COMTR after passing a criminal background check. 2 Shanehchian successfully registered with COMTR on April 1, Rand has not presented any evidence to establish a triable issue of fact regarding a breach by Elements. Therefore, her claim for negligent hiring must fail. II. Plaintiff s Negligent Supervision and Retention Claims Like the tort of negligent hiring, the torts of negligent supervision and negligent retention are predicated on an employer s antecedent ability to recognize character attributes or prior conduct on the part of an employee which would create an undue risk of harm to persons with whom the employee may come into contact as part of his employment. Keller v. Koca, 111 P.3d 445, 449 (Colo. 2005); Van Osdol v. Vogt, 892 P.2d 402, 408 (Colo. App. 1994) ( An employer may be subject to liability for negligent supervision and retention if the employer knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm ). The question whether an employer owes a duty of care to a third party for purposes of a negligent supervision or negligent retention claim turns on the employer s knowledge and causation. In other words, the question is whether the employee s acts are so connected with the employment in time and place such that the employer knows that harm may result from the employee s conduct and that the employer is given an opportunity to control such conduct. Keller, 111 P.3d at Rand has not put forth any evidence showing that at the time Shanehchian was hired Elements had reason to believe, by reason of some attribute of character or prior conduct, that Shanehchian would present an undue risk of harm to Element s clients. Therefore, although Shanehchian was required to undergo a background check to continue his employment at Elements, Elements did not have a legal duty to perform a background check before hiring Shanehchian as a massage therapist. Id. at

5 The undisputed evidence shows that Elements did not owe a duty to Rand. As indicated, Rand must show that Shanehchian demonstrated character attributes or engaged in conduct after he was hired that put Elements on notice that he posed an undue risk of harm to its clients. Rand has not presented any evidence suggesting Shanehchian did anything during his employment with Elements that would lead Elements to believe he posed such a risk. Rather, the undisputed evidence shows that Shanehchian was highly recommended for the position, that Elements never received any complaints from Shanehchian s other clients or coworkers, and that Shanehchian successfully passed a criminal background check approximately three months before the alleged assault occurred. See generally Merhib Aff. Because Rand cannot establish that Elements owed her a legal duty, her claims for negligent supervision and negligent retention must fail. Id. at III , C.R.S. Because the Court concludes that Rand has not met her burden of establishing a triable issue of fact with respect to either her negligent hiring, negligent retention, or negligent supervision claim, the Court need not address Merhib s and Barker s contention that they cannot be held individually liable under , C.R.S. CONLCUSION Summary judgment enters in defendants Merhib s, Barker s, and Element s favor on Rand s negligent hiring, negligent supervision, and negligent retention claims. As all Rand s other claims against Merhib, Barker, Elements, and Shanehchian have already been dismissed, this case is now dismissed in its entirety. SO ORDERED this July 17, BY THE COURT: The Honorable Elizabeth B. Volz District Court Judge 5