Is Viva Tacoland Partly Liable for Its Employee’s Alleged Crime?

By Michael GrossmanMay 07, 2018Reading Time: 4 minutes

According to San Antonio news outlets, a bartender at the Viva Tacoland bar stands accused of "spiking" the drinks of two female patrons of the bar on March 25. 30-year-old Dillonger Hackett was arrested on Monday April 23 for allegedly drugging the shots and then accompanying the intoxicated women to their nearby hotel, where they say he sexually assaulted one or possibly both of them.

If police forensic tests prove that Hackett did in fact put a foreign substance in the drinks he brought the two women, the charges against him will be upgraded from sexual assault to aggravated sexual assault, which carries a more severe penalty.

The reports provoked some disagreement among their readers, visible in their respective comment sections. Some commenters questioned the validity of the women's allegations ("Were they actually just drunk? How did they make it back to the hotel if they were drugged? Was it really assault, or just a choice they regretted making?"). I can't say that I agree with their cynicism, but luckily the court of public opinion isn't an actual arbiter of the law. Mr. Hackett is as entitled to due process as any other defendant would be. If he's as guilty as some commenters believe, let the prosecution satisfy its burden of proof like it would in any other case. I'm hardly campaigning for his immediate acquittal; I just support the Fourteenth Amendment.

There is a point of civil law here that I want to take a closer look at, though: If Mr. Hackett is found guilty of the crime, could his employer Viva Tacoland share any of the liability for the damages suffered by his victims?

Is Viva Tacoland Liable?

Most reports I've read seem to agree that Mr. Hackett left the bar with the two women. The hotel's security cameras also confirm he arrived with them and left alone some time later, "zipping up his pants in the elevator."

Whatever their beliefs on Mr. Hackett's personal culpability, some people also wanted to know: Should Viva Tacoland be held accountable, since he's their employee and allegedly drugged drinks while on the clock? Several people weighed in to say the bar should be considered partially liable for the events. In fact, here's a direct quote from the comments on a news article about the alleged crime:

"Concerned Citizen" and others seem ready to point accusatory fingers at Viva Tacoland for employing someone who is allegedly capable of this heinous crime. However, I'd say the likelihood of the bar receiving any serious punishment for hiring a guy who might be capable of such misdeeds is pretty low. Much of it would come down to foreseeability, or whether the bar could reasonably have known Mr. Hackett might do something like he's accused of doing. There's a couple of ways the bar might have some liability:

  1. If Viva Tacoland conducted a background check on Mr. Hackett before hiring him and found prior felonies or questionable behavior in the vein of his current (alleged) misconduct, yet brought him on in a role where he could potentially repeat that behavior, the restaurant could be accused of negligent hiring. It's in a business's best interests to do a little light digging to help them avoid known troublemakers. Retail stores wouldn't bring on shoplifters, daycares don't hire sex offenders, and lumberjacks discard applications from axe murderers.

    Similarly, if the bar failed to conduct a background check at all and therefore never saw those red flags, that could also be considered negligence. That's not the case here, however; Viva Tacoland's manager said Hackett passed background checks and reference calls without issue at the time he was hired.

    Detectives note that he had a few small run-ins with the law in the past, and learned from several interviews that some felt he was personally disagreeable. However, the investigation found nothing in Hackett's past that might have predicted this incident.

  2. If the restaurant let Mr. Hackett work with complete autonomy and no oversight (some bartenders receive little interaction with management throughout their shifts), or someone in charge noticed his irregular behavior and failed to investigate, there's a possible argument for negligent supervision. However, this argument would be weaker and harder to prove in court than a negligent hiring cause of action.

Note that either of these would be somewhat difficult to prove, and wouldn't conclusively mean the restaurant was negligent. They're just arguments that a plaintiff's attorney might employ as part of a broader strategy.

This Isn't Viva Tacoland's Fault.

It's unlikely that Viva Tacoland will face any repercussions for Mr. Hackett's alleged actions. Given the known facts, it surely doesn't seem like they had any hand in their bartender's choice to assault a pair of customers. Sexual assault is of course a reprehensible crime, but without any early warnings that their employee could commit such an act, how were the employers to know? There are no Minority Report-esque "precogs" to alert them to the offense before it could occur. Hackett passed the normal pre-hire battery of checks--a criminal background inquiry and employment verification calls--and even if some of his acquaintances said he's kind of a jerk, a wide gulf exists between that and actual criminal behavior.

There's plenty of evidence out there that employers, through negligence of action or inaction, allow employees to get away with behaviors ranging from inappropriate to unsafe to downright illegal. For instance, we write a lot about trucking companies that don't vet their drivers or appropriately maintain their fleets in order to shave some costs off the bottom line. Also, when we refer to negligent bars we're generally talking about their tendency to over-serve customers who then drive drunk, creating liability under dram shop law. Negligent employers like these open themselves to lawsuits if someone is hurt by their employees, but in neither case are they complicit in the intentional commission of a felony.

It was reported that Hackett kept his head down and didn't say a word as he was escorted out of the bar by police. Perhaps he was exercising his Miranda rights, refusing to incriminate himself further through word or deed. If it were up to "Concerned Citizen" and any who agree with his or her sentiments, that silence wouldn't be enough to save him from a preconceived estimation of his guilt. Likewise, Viva Tacoland could have been steamrolled by the same public judgment since it seems association might be enough for some parties to infer culpability. Luckily, the American justice system requires more from its prosecutors and plaintiffs.